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en-usTechdirt. Stories filed under "injunction"https://ii.techdirt.com/s/t/i/td-88x31.gifhttps://www.techdirt.com/Mon, 14 Nov 2016 03:40:43 PSTCourt Stays FTC's LabMD Injunction; No Deterrent In Punishing A Company It Helped KillTim Cushinghttps://www.techdirt.com/articles/20161111/11244836025/court-stays-ftcs-labmd-injunction-no-deterrent-punishing-company-it-helped-kill.shtml
https://www.techdirt.com/articles/20161111/11244836025/court-stays-ftcs-labmd-injunction-no-deterrent-punishing-company-it-helped-kill.shtml
Despite turning LabMD into a stone -- based on some suspect data breach allegations by a data protection company engaged in shady sales tactics -- the FTC is still seeking to extract as much blood as possible. Thanks to the FTC's ongoing efforts against LabMD, the company has been closed, has less than $5000 to its name, and is fighting back against the commission with pro bono help.

The FTC wants to punish LabMD for a patient file that ended up file sharing services thanks to an employee's use of Limewire at work. (The file was in folder that end up being "shared" by default Limewire settings [My Documents].) Tiversa, a company that prowled file sharing services for sensitive documents in hopes of leveraging these into data security contracts, took this info to the FTC when LabMD refused to purchase its offerings.

Since that point, the FTC has bankrupted LabMD by forcing it to defend itself against a supposed breach that never resulted in the misuse of patient data. Tiversa has seen its own fortunes diminish, culminating in an FBI raid of its offices in March of this year.

Seemingly unconcerned that LabMD is now a defunct company, the FTC still wants it to implement a series of expensive steps to ensure the data it won't be collecting in the future is better protected.

Having found that LabMD violated the FTC Act, the Commission’s Final Order will ensure that LabMD reasonably protects the security and confidentiality of the personal consumer information in its possession by requiring LabMD to establish a comprehensive information security program. It also requires LabMD to obtain periodic independent, third-party assessments regarding the implementation of the information security program, and to notify those consumers whose personal information was exposed on the P2P network about the unauthorized disclosure of their personal information and about how they can protect themselves from identity theft or related harms.

LabMD has asked for a stay of this injunction pending its appeal. That stay has been granted by the Eleventh Circuit Appeals Court. (via the Office of Inadequate Security)

The appeals court points out [PDF] several things about the stay the FTC is contesting, not the least of which is the company's inability to actually follow the injunction if granted, much less have any reason to do so, given its current situation.

The costs of complying with the FTC’s Order would cause LabMD irreparable harm in light of its current financial situation. [...] The costs associated with these measures are hotly debated by the parties. LabMD says the costs will exceed $250,000. The FTC does not offer its own estimate, but disputes the $250,000 figure. Regardless, it is clear that the postage for the notice requirements alone would be more than $4,000. Certainly the costs of all the other measures would add to that amount.

LabMD is no longer an operational business. It has no personnel and no revenue. It now has less than $5,000 cash on hand. It reported a loss of $310,243 last fiscal year, and has a pending $1 million judgment against it on account of its early termination of its lease. LabMD cannot even afford legal representation, and is relying on pro bono services for this appeal.

Given the company's financial ruin, the injunction would serve no possible deterrent purpose. There's nothing left to destroy and, unfortunately, nothing to be gained by LabMD, even if it ultimately prevails.

Ordinary compliance costs are typically insufficient to render harm irreparable. But given LabMD’s bleak outlook, the costs of compliance pending appeal would constitute an irreparable harm. This is especially so because if LabMD is ultimately successful on appeal, the costs would not be recoverable in light of the FTC’s sovereign immunity.

Furthermore, the court feels there's absolutely no risk to the further exposure of patients' data, even with the file still supposedly in the wild. The company has its own copy, residing on a computer that is never connected to the internet. If a customer requests data, LabMD hooks it up to printer and mails or faxes them a hard copy.

As for the FTC's claim that a file that has been in the wild since 2005 would result in future breaches of patient confidentiality, the court is rather skeptical.

For those patients whose personal information was in the 1718 file, there is no evidence of a current risk to them. Specifically, there is no evidence that any consumer ever for nefarious purposes before this appeal terminates. suffered any tangible harm, or that anyone other than Tiversa, LabMD, or the FTC has seen the 1718 file. Although the FTC’s Order denying LabMD’s stay application says there remains a potential risk of harm to consumers whose information was in this file, we think it improbable that a party downloaded this information now years ago, has not used it for several years, but may yet use it for nefarious reasons before this appeal terminates.

Finally, the court has a few choice words for the FTC's dictionary attack -- used to shore up its weak claims of future harm from the escaped file.

[I]t is not clear that the FTC reasonably interpreted “likely to cause” as that term is used in § 45(n). The FTC held that “likely to cause” does not mean “probable.” Instead, it interpreted “likely to cause” to mean “significant risk,” explaining that “a practice may be unfair if the magnitude of the potential injury is large, even if likelihood of the injury occurring is low.” The FTC looked to different dictionaries and found different definitions of “likely.” It is through this approach that it argues its construction is correct, considering the statute’s context as a whole.

Even respecting this process, our reading of the same dictionaries leads us to a different result. The FTC looked to dictionary definitions that say “likely” means “probable” or “reasonably expected.”Reliance on these dictionaries can reasonably allow the FTC to reject the meaning of “likely” advocated by LabMD, that is, a “high probability of occurring.” However, we read both “probable” and “reasonably expected,” to require a higher threshold than that set by the FTC. In other words, we do not read the word “likely” to include something that has a low likelihood. We do not believe an interpretation that does this is reasonable.

The sick thing is that even if LabMD ultimately prevails, it won't matter. It cannot recover any of its expenses and the company has been gutted by its fight against the FTC. That the whole situation appears to have stemmed from a data protection company's shady sales pitch is even worse. Tiversa not only was uncooperative during the FTC's investigation of LabMD, but it has also drawn the attention of the House Oversight Committee, which was unimpressed by the Tiversa's tactics both before and after the FTC's investigation of LabMD.

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]]>killing-a-horse-just-to-beat-ithttps://www.techdirt.com/comment_rss.php?sid=20161111/11244836025Wed, 17 Aug 2016 03:43:22 PDTCitigroup Gets First Loss In Trademark Suit Against AT&T For Saying 'Thanks'Timothy Geignerhttps://www.techdirt.com/articles/20160816/08155735257/citigroup-gets-first-loss-trademark-suit-against-att-saying-thanks.shtml
https://www.techdirt.com/articles/20160816/08155735257/citigroup-gets-first-loss-trademark-suit-against-att-saying-thanks.shtml
A couple of months back, I brought to you a trademark suit initiated by Citigroup against AT&T that amost perfectly distilled both how ridiculously litigious trademark law has become and exactly how facepalm-inducingly lax the standards for trademark approval are with our friends over at the USPTO. The summary of the lawsuit can be described thusly: Citigroup has sued AT&T because the latter has branded messaging that says "thanks" and "thank you," and Citigroup has a trademark on the term "thankyou." And if your forehead hasn't smacked your desk yet, you have a stronger constitution than this author.

Included within Citigroup's hilarious filing was a request for an injunction by the court barring AT&T from continuing any of this gratitude towards its customers over the immense harm it was doing to the bank. Well, the court has ruled on that request by refusing to issue the injunction, all while patiently laying out within the court document all of the reasons why the court will almost certainly eventually dismiss this suit entirely.

U.S. District Judge Katherine Forrest was perhaps politer to Citigroup than expected. Instead of just saying, “No, you cannot lay claim to the word ‘thanks,’ it is part of civil conversation, and you can’t own it. Next case,” Forrest actually took time to explain why Citigroup can’t own the word “thanks” and “thank you.” In a 30-page decision, she explained to Citigroup that “the law does not allow one company to own the word ‘thanks.'”

Within the filing itself (pdf), Forrest goes on in a point-by-point and entirely too patient exposé on how little evidence there is for any customer confusion, why a company simply saying thank you to its customers doesn't warrant an injunction, and even details by color, font and size the differences between the messaging between the two companies. And, while the court takes pains within the document to note that the ruling on the injunction is not the place to rule on wider questions of the validity of the trademark as a whole or to make full determinations as to the likelihood of customer confusion, passages such as the following should give Citigroup a hint of what it's up against.

AT&T has advanced evidence indicating that, both before Citigroup first began using its THANKYOU mark and since that time, there are and have been dozens upon dozens of goods, services, and entities that made use of variations on the words “thanks” and “thank you,” including by registering their marks with state and federal registers. (ECF No. 38 ¶¶ 35-43.) A number of these are explicitly registered as loyalty or reward programs. (See id.) Such evidence undermines the argument for distinctiveness. Estee Lauder, 108 F.3d at 1511. Indeed, Citigroup acknowledged that other corporations made use of the “common term” THANK YOU in its trademark prosecution, but argued at the time that consumers “can readily distinguish between such marks without confusion.” (ECF No. 39 Exh. 2 at 4.)

The present evidentiary record does not permit the Court to draw firm conclusions regarding acquired distinctiveness. Citigroup’s loyalty programs are well-established, but seems to exist in a marketplace in which names similar to the THANKYOU marks are used by other producers, thus undercutting their distinctiveness.

The court goes on to explain the difference between the telecom and banking industries to Citigroup, too, as well as to remind it that just because the bank did some co-branding with AT&T in the past, the fact that AT&T plastered its name and logo all over the "thanks" branding in question doesn't suddenly not differentiate the originator of the message for the consuming public.

And if that feels like entirely too much effort to have gone into a single ruling within a broader scope of a trademark suit that is essentially over the ownership of the term "thank you" for business purposes, well, you're not alone. But it seems like we'll have to wait a bit longer for the full ruling and, hopefully, the eventual disbanding of Citigroup's insane "thankyou" trademark entirely.

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]]>you're welcomehttps://www.techdirt.com/comment_rss.php?sid=20160816/08155735257Fri, 1 Jul 2016 03:25:00 PDTTwo Courts Throw Out Turkish President's Bid To Obtain An Injunction Against German Media BossGlyn Moodyhttps://www.techdirt.com/articles/20160623/06162334790/two-courts-throw-out-turkish-presidents-bid-to-obtain-injunction-against-german-media-boss.shtml
https://www.techdirt.com/articles/20160623/06162334790/two-courts-throw-out-turkish-presidents-bid-to-obtain-injunction-against-german-media-boss.shtml
Last month, Techdirt noted that the Turkish President, Recep Tayyip Erdoğan, had broadened his assault on free speech in Germany with even more ridiculous actions. As well as demanding that the German comedian Jan Böhmermann should be punished for an admittedly rather coarse satirical poem, Erdoğan went on to seek an injunction against the German media boss Mathias Döpfner for daring to say he laughed out loud when he read the ditty in question. Fortunately, not just one but two German courts have now (politely) told the Turkish president what he can do with his request, as EurActiv reports:

After failing to get an injunction from a lower court last month, Erdoğan also lost an appeal before the higher regional court in the western German city of Cologne.

The judges said they considered Doepfner’s letter of support "a permissible expression of opinion as protected under Article 5" of Germany’s constitution, the court said in a statement.

Unfortunately, that's not the end of the affair. First, as EurActiv notes:

Erdoğan could still seek recourse before Germany’s top tribunal, the Federal Constitutional Court.

Knowing Erdoğan, that remains a distinct possibility. Secondly, and more seriously, the main case involving Böhmermann has not been heard yet. And there it's not a matter of an injunction, but of time behind bars.

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]]>but-it-ain't-over-yethttps://www.techdirt.com/comment_rss.php?sid=20160623/06162334790Tue, 7 Jun 2016 09:27:13 PDTWeb Sheriff Accuses Us Of Breaking Basically Every Possible Law For Pointing Out That It's Abusing DMCA TakedownsMike Masnickhttps://www.techdirt.com/articles/20160606/02071834632/web-sheriff-accuses-us-breaking-basically-every-possible-law-pointing-out-that-abusing-dmca-takedowns.shtml
https://www.techdirt.com/articles/20160606/02071834632/web-sheriff-accuses-us-breaking-basically-every-possible-law-pointing-out-that-abusing-dmca-takedowns.shtmlabusing the DMCA to try to get Google to delist stories relating to that "celebrity threesome" media injunction in the UK that has been making news for a few months. We highlighted just how ridiculous this was on many accounts, including using a copyright takedown notice on an issue that wasn't about copyright at all. And they even tried to take down the company's own Zendesk request to remove content from Reddit.

Well, suffice it to say that Web Sheriff was none too pleased with our article. Just a day after it went up, we received an email from "JP" at Web Sheriff (though it was "signed" by "John E. Henehan") telling us that we had basically violated all the laws with that post (shouting caps in the original):

NOTICE OF BREACH OF ISP'S / HOST'S PUBLISHED TERMS OF SERVICE
NOTICE OF BREACH OF WEB-SITE'S PUBLISHED TERMS OF SERVICE

Yeah, so, none of that is true. The email pretends to be a DMCA notice (among other things), but is not a valid notice in that it fails to actually name what copyright was infringed upon. Here's what it says is the "infringing materials" where you'll note despite quite a lot of SHOUTING TEXT, no actual materials are named.

The email then goes on to try to explain how we broke all these laws and basically refuses to provide any details at all. I won't go through them all (you can see the full email published below), but just for fun, here's how we've been violating human rights:

HUMAN RIGHTS VIOLATIONS (VIOLATION OF INTERNATIONAL & DOMESTIC HUMAN RIGHTS LEGISLATION AND TREATIES THROUGH FAILURE TO ABIDE BY RIGHT-TO-PRIVACY PURSUANT TO, INTER ALIA, ARTICLE 8 OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS & ARTICLE 1 §1 OF THE CALIFORNIA CONSTITUTION AND WAY OF THE ILLEGAL PUBLICATION, DIGITAL DISTRIBUTION & EXPLOITATION OF PRIVATE INFORMATION WHICH IS THE SUBJECT OF A COURT INJUNCTION AND IN CIRCUMSTANCES WHERE THE SUBJECTS OF SUCH INFORMATION / DATA / IMAGES HAD A REASONABLE EXPECTATION OF AND LEGAL ENTITLEMENT TO PRIVACY)

Or, my personal favorite -- money laundering:

PROCEEDS OF CRIME & MONEY LAUNDERING VIOLATIONS (VIOLATIONS OF INTERNATIONAL & DOMESTIC PROCEEDS OF CRIME & MONEY LAUNDERING LEGISLATION & TREATIES THROUGH THE HANDLING AND / OR LAUNDERING OF THE PROCEEDS OF CRIMINAL ACTIVITY)

Yes, that's right. Pointing out (accurately!) that Web Sheriff is trying to abuse the DMCA to take down material that is not subject to a copyright claim is -- in the demented views of Web Sheriff -- "money laundering."

There's also "harassment, malicious communications and cyber-stalking" where they can't even bother to name a statute:

HARASSMENT, MALICIOUS COMMUNICATIONS & CYBER-STALKING VIOLATIONS (VIOLATION OF INTERNATIONAL & DOMESTIC HARASSMENT, MALICIOUS COMMUNICATIONS & CYBER-STALKING LEGISLATION & TREATIES THROUGH THE POSTING OF MALICIOUS COMMUNICATIONS AND OTHERWISE THROUGH THE PUBLICATION OF MATERIALS WITH THE INTENTION TO WILFULLY & MALICIOUSLY HARASS)

For added fun, twice in the email, the company notes that the email itself is covered by copyright, and then includes this bit of pure bullshit at the end:

This communication may not be disclosed or otherwise communicated to anyone other than the addressee(s), nor may it be copied or reproduced in any way without the written authorization of Web Sheriff®.

Yeah, that's not how this works, though I wouldn't be surprised to see them send another email claiming otherwise.

For what it's worth, the very next day, we received another email from Web Sheriff that was basically identical, but demanding that we remove six comments on our earlier story about the UK injunction.

I do wonder if this kind of bullshit works for other people, in intimidating them to remove stuff from the internet because of the spaghetti/wall aspect of it all. But, rest assured, we're not concerned because Web Sheriff is full of shit here. We violated none of those laws, and the fact that the company is so focused on trying to censor an article that highlights its own bogus conduct should tell you a lot about what a complete joke this company is.

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]]>but-i-didn't-shoot-the-deputyhttps://www.techdirt.com/comment_rss.php?sid=20160606/02071834632Tue, 31 May 2016 06:31:33 PDTCourt Says MuckRock Must Take Down Smart Grid Company's Documents Because Judge Has 'No Time' To Review Case ProperlyTim Cushinghttps://www.techdirt.com/articles/20160527/08030834564/court-says-muckrock-must-take-down-smart-grid-companys-documents-because-judge-has-no-time-to-review-case-properly.shtml
https://www.techdirt.com/articles/20160527/08030834564/court-says-muckrock-must-take-down-smart-grid-companys-documents-because-judge-has-no-time-to-review-case-properly.shtml
Last week, we covered a multinational corporation's attempt to force MuckRock to take down documents supplied by the city of Seattle to Phil Mocek. Landis+Gyr, which was awarded the contract to supply the city with "smart meters" in conjunction with the publicly-owned utility, claimed the documents released -- along with documents the city was planning to release -- would be a boon to competitors and terrorists, although it didn't specify which of these it was more worried about.

The company also demanded MuckRock turn over information on site users who may have seen or downloaded the documents. It also (hilariously) demanded MuckRock assist it in the "retrieval" of disseminated documents.

At a King County court hearing yesterday, Commissioner Carlos Velategui granted the companies' request for a temporary restraining order, lawyers for the companies told me. "There's no way that I can spend the time to look at all this," Velategui said. Neither Mocek nor the city showed up to defend themselves.

The request was filed on the 23rd and granted on the 26th. That's an impressive turn radius for government machinery. This compressed timeframe likely explains the court's harried decision, as well as the lack of defendants in the courtroom.

MuckRock will be fighting the order, but it will now have help. The EFF has stepped in to represent MuckRock and Mocek against Landis+Gyr (Update: Mocek notes in our comments that EFF has only offered to help MuckRock so far). The documents MuckRock is currently unable to provide to the public can be found here: L+G Managed Services Report and L+G Security Overview (in case you want a copy).

Landis+Gyr may have achieved the first step in its plan to herd its PDF cats back into the bag, but its complaint should have been limited to the government organization that released the documents it claims are sensitive, rather than the FOIA requester and clearinghouse that received them. And, trade secrets or not, the company is working in conjunction with a city government to install devices with possible privacy implications on every home -- so more transparency, not less, is exactly what's needed.

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]]>ain't nobody got time to consider free speech implicationshttps://www.techdirt.com/comment_rss.php?sid=20160527/08030834564Tue, 24 May 2016 08:38:25 PDTWeb Sheriff Abuses DMCA In Weak Attempt To Hide Info Under UK High Court Injunction, Fails MiserablyTim Cushinghttps://www.techdirt.com/articles/20160523/08165034524/web-sheriff-abuses-dmca-weak-attempt-to-hide-info-under-uk-high-court-injunction-fails-miserably.shtml
https://www.techdirt.com/articles/20160523/08165034524/web-sheriff-abuses-dmca-weak-attempt-to-hide-info-under-uk-high-court-injunction-fails-miserably.shtml
Last week, Twitter engaged in some dubious behavior on behalf of a few super-secret someones who'd rather the press didn't discuss their sexual activity. Twitter was apparently firing off "letters of warning" to users who had dared break an injunction issued by the UK Supreme Court forbidding anyone in the media from discussing a threesome involving a prominent British celebrity.

There was very little legal force behind the "warning letters" (despite threats from local authorities) and Twitter users were under no obligation to comply with the company's request. The fact that Twitter even bothered to issue these highlights the utter futility of injunctions/super-injunctions of this variety, which are really just a way for British citizens of a certain level of importance to control local media. It doesn't really matter if the UK's highest court upholds a super-injunction if it has no way of enforcing it beyond its super-limited purview.

That doesn't mean the lawyers who have obtained these injunctions on behalf of their clients aren't trying. While doing a bit of research for an unrelated story, I stumbled across Web Sheriff's utter failure to talk Google into delisting URLs by waving this injunction around in a threatening manner.

Contained in these takedown notices is an awe-inspiring wall of text -- something that might impress the average DMCA notice recipient. But Google? Not so much. Here's just a very small portion of it:

Then, of course, there are the URLs targeted for delisting, which -- thanks to Web Sheriff's failed injunction-quoting requests -- are all basically injunction spoilers.

Included in the failed notices are some seriously dubious requests, like Web Sheriff demanding an entire post at the Onion's AV Club be taken down because of a single comment and what appears to be Web Sheriff's own attempted Zendesk request for removal of content from Reddit.

Thanks to Web Sheriff's efforts to force the rest of the world to comply with UK law and its ridiculously unenforceable injunctions, more people are now aware of who's being "protected" by the ruling and where to find more details.

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]]>hopefully-clients-are-only-paying-for-successful-takedown-requestshttps://www.techdirt.com/comment_rss.php?sid=20160523/08165034524Wed, 11 May 2016 11:44:00 PDTTurkish President Erdogan Now Demands Injunction Against German Media Boss For Saying He Laughed At Anti-Erdogan PoemMike Masnickhttps://www.techdirt.com/articles/20160511/01324634403/turkish-president-erdogan-now-demands-injunction-against-german-media-boss-saying-he-laughed-anti-erdogan-poem.shtml
https://www.techdirt.com/articles/20160511/01324634403/turkish-president-erdogan-now-demands-injunction-against-german-media-boss-saying-he-laughed-anti-erdogan-poem.shtmlthin-skinned, insecure freakouts of Turkish President Recep Tayyip Erdogan can't get any more crazy, they do. If you don't recall, Erdogan has a notrious thin skin, and a long history of censorship of views he doesn't like. But since becoming President, this has gone into overdrive, with him filing over 1800 cases against people in Turkey for insulting him -- including the famous case in which someone passed around an internet meme comparing Erdogan to Gollum.

That kind of nuttiness jumped international boundaries recently, when Erdogan's lawyers discovered a long-forgotten German law that made it illegal to insult the head of a foreign country, and demanded that the law be used against a satirical German comedian, Jan Bohmermann, who purposefully read an insulting poem about Erdogan, in order to mock his thin skin. Some might find suing over that poem to be... well... a bit on the nose in making the point the poem was intended to make. But, to Erdogan, it appears that suing over insults is just something he can't stop doing. More recently, Erdogan discovered that Switzerland has a similar law and went after people there too (while also getting a Dutch reporter arrested).

Apparently, the fact that the most commonly mocked aspect of Erdogan these days is his inability to handle people mocking him hasn't made Erdogan realize that the more he freaks out, the more people are going to mock him. His latest move is especially crazy. It appears that the CEO of German mega-publishers Axel Springer, Mathias Dopfner, wrote an "open letter" in support of Bohmermann, which stated that he "laughed out loud" at Bohmermann's poem, and suggested that the case against Bohmermann is a problem for free speech. This is obviously a reasonable opinion held by many.

Erdogan's response? Apparently, it's to use the same law that was used against Bohmermann, to demand an injunction against Dopfner for publishing the letter, in order to get it taken down. Thankfully, this request was quickly rejected by a German court, saying that the open letter was "a contribution to building public opinion in a controversial debate."

Erdogan and his lawyer, Ralf Hocker, seem to only want to double down on this. In one article he says (prior to the injunction being denied) that if it were denied, he would appeal the decision to a higher court. And Hocker has some weird ideas about free speech and human dignity:

“Mr Erdogan is a human being and human dignity is inviolable,” Hocker said, adding that this was placed above the freedom of press, art and opinion in the German constitution.

Uh, no. Dignity is very much violable. If you do something that trashes your own dignity. Like suing comedians for making a joke about you. Or suing nearly 2,000 other people for making jokes about you. The loss of dignity is not from the poem or the insults. It's from Erdogan's own actions.

In the NY Times link above, Hocker, makes some even more ridiculous statements:

Ralf Hocker, a lawyer representing Mr. Erdogan in Germany, said he had a mandate to seek an injunction against anyone who publicly insults the Turkish president, to try to stop what he described as an “avalanche” of scornful abuse.

“Everyone thinks they are allowed to insult Mr. Erdogan in any way that they want because they do not find him very sympathetic,” Mr. Höcker said. “But this is not about sympathy, it is about human dignity, namely to protect it.”

Of course, seeking an injunction against people mocking Erdogan for trying to silence all this criticism isn't going to stop the avalanche. It's just going to make it bigger. And, no, the reason people think they are allowed to insult Mr. Erdogan is because they believe in freedom of expression and that Erdogan has done things worthy of scorn. Stop doing those things -- like suing people over meaningless jokes -- and the scorn goes away. And, again, suing over "protecting human dignity" seems like an odd way to improve your dignity.

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]]>give-it-a-rest,-erdoganhttps://www.techdirt.com/comment_rss.php?sid=20160511/01324634403Wed, 9 Mar 2016 23:23:00 PSTGene Sequencing Giant Tries To Use Patents To Block Rising Star's Pocket-Sized Unit From USGlyn Moodyhttps://www.techdirt.com/articles/20160227/02594733729/gene-sequencing-giant-tries-to-use-patents-to-block-rising-stars-pocket-sized-unit-us.shtml
https://www.techdirt.com/articles/20160227/02594733729/gene-sequencing-giant-tries-to-use-patents-to-block-rising-stars-pocket-sized-unit-us.shtml
Last year, Techdirt wrote about how one of the most significant breakthroughs in the field of genomics is already embroiled in a nasty patent battle. But it's not just the fundamental techniques in this field that are being held back by selfish attempts to "own" key technologies. An article in the MIT Technology Review reports that the dominant manufacturer of DNA sequencing machines, Illumina, is trying to use patents to throttle an upstart rival:

Illumina said today it would try to block commercial sales of a disruptive new DNA sequencing instrument developed by a high-flying British rival, Oxford Nanopore.

In a patent lawsuit [pdf] and a separate complaint [pdf] with the U.S. International Trade Commission, Illumina said the British company's cutting-edge DNA sequencing devices contain stolen ideas and should be stopped at the docks.

Oxford Nanopore denies that it is infringing on any patent that Illumina controls, but needs to be able to prove that not just once, but twice. As well as suing in the courts, Illumina is trying to use the International Trade Commission (ITC) loophole that Techdirt has been warning about for many years now. The ITC does not award damages, but can impose injunctions that block the import of items it deems infringing. And that's precisely what Illumina wants, in order to stop the British Oxford Nanopore from challenging it in the US with its new technology, which offers important advantages over Illumina's systems:

Illumina's refrigerator-sized instruments are fast and accurate (see "Why Illumina Is Number One"). But because it works differently, Oxford's MinION, as the device is called, is small enough to be portable (it's about the size of a cell phone) and reads out very long stretches of DNA.

Although it's slower and less accurate than Illumina's instruments, nanopore technology threatens to become a competitor as scientists find entirely new applications for it like sequencing Ebola viruses and diagnosing patients from a makeshift lab in Guinea.

According to the MIT Technology Review article, which gives more details on how the nanopore technology works, more than a thousand teams are already using Oxford Nanopore's pocked-sized sequencing unit. It offers capabilities that Illumina not only cannot match but is unlikely to match any time soon:

In asking U.S. trade officials to investigate Oxford and possibly bar imports of the MinION to the U.S., Illumina could anger researchers, since no comparable technology is available. Illumina has never announced plans to sell a nanopore product of its own.

So, rather than competing by launching its own equivalent product, a big, successful company that dominates a market is trying to use legal actions to squash an exciting new technology before it becomes a serious threat. In other words, yet another case of patents being used not to innovate, for the benefit of the public, but to stifle innovation, solely for the benefit of the current market leader.

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]]>anti-innovationhttps://www.techdirt.com/comment_rss.php?sid=20160227/02594733729Thu, 10 Sep 2015 06:14:00 PDTColorado Judge Ignores First Amendment, Allows Prior Restraint In Banning Aretha Franklin FilmMike Masnickhttps://www.techdirt.com/articles/20150908/17485332198/colorado-judge-ignores-first-amendment-allows-prior-restraint-banning-aretha-franklin-film.shtml
https://www.techdirt.com/articles/20150908/17485332198/colorado-judge-ignores-first-amendment-allows-prior-restraint-banning-aretha-franklin-film.shtmlsucceeded in convincing a judge in Colorado to stop the Telluride Film Festival from screening the documentary Amazing Grace -- a concert film shot by Sydney Pollack that was actually filmed back in 1972, but was never shown. Franklin, of course, has no copyright in the film, but argued in her injunction request that she had an agreement with Pollack not to use the film without her authorization. From the complaint:

Ms. Franklin
has never given permission for the use of this footage in any commercial context and has not
authorized the public release of the footage. The footage was taken with the express
understanding that it would not be used commercially without agreement and consent by Ms.
Franklin.

Franklin argued that part of the agreement between Warner Bros., which held the rights to the film, and Alan Elliott, who apparently purchased those rights from WB, was that Elliott would then obtain all the necessary "authorizations, consents and releases and pay all re-use fees and other compensation required by applicable collective bargaining or individual contracts or otherwise required by law." While parts of the complaint hint at possible copyright claims, there really is none here, which is why the actual counts in the complaint do not mention copyright. Instead, they lean heavily on the (already troublesome) concept of publicity rights, as well as an anti-bootlegging law, which makes little sense, since the video is far from a bootleg.

As noted above, amazingly, the judge, John Kane, very quickly obliged and issued a short injunction barring the showing of the film. There is basically no discussion of the issues at all. Rather, Judge Kane merely repeats verbatim the arguments made by Franklin and then orders the injunction, blocking the showing of the movie.

This is ridiculous. As Eriq Gardner at the Hollywood Reporter lays out in great detail, it is difficult to see how this is possible under the First Amendment. When we're talking about speech -- even defamatory speech -- courts cannot issue injunctions, because that's prior restraint. There may be other remedies, but it seems dangerous to argue that a publicity rights claim can lead to an entire film being blocked:

In Colorado, a plaintiff can't prevail on a publicity rights claim if a defendant's use of the plaintiff's name and likeness is privileged under the First Amendment. That much is clear by prior cases. The state's Supreme Court has held the analysis turns on two issues — whether the use is primarily commercial or noncommercial and whether such use reasonably relates to a publication concerning a matter that is newsworthy or of legitimate public concern. Feature films are almost always deemed noncommercial (as opposed to, say, an advertisement) while the public concern of Amazing Grace is a toss-up.

Even if Franklin wins this analysis and shows she has a likelihood of prevailing in her lawsuit, under the proper standard of law, she then needs to demonstrate "irreparable harm" to obtain an injunction. In past court cases, judges have refused to enjoin works even when defamation can be shown or even when someone's privacy rights are being violated. Publicity rights should theoretically evoke an even higher bar because what's being protected is commercial use of their identity.

Even worse, the judge relies on that agreement between Warner Bros. and Elliott concerning Elliott's requirement to get permission. But the actual lawsuit here is against neither WB nor Elliott... but against the Telluride Film Festival, which is not a party to that agreement and thus should not be bound by it. So, even if one were to argue that Elliott had somehow waived his First Amendment rights in signing that contract, that says nothing at all about Telluride's.

The expansive reading of the situation by the judge is really dangerous. As Gardner points out, such a reading of publicity rights laws could allow celebrities to block reporters from writing about them by claiming it is violation of their rights. Furthermore, considering the First Amendment questions at play here, it is even more troubling that Judge Kane doesn't even mention the First Amendment at all, nor does he explore the issue of prior restraint. Even more bizarre? Despite the lack of any copyright claim, the judge seems to focus on the lack of "fair use" for why he's shutting the film down:

A film that essentially recreates the entire concert experience is not fair use of this footage.

Again, the complaint doesn't even make a copyright claim, so it makes no sense to do a fair use analysis in the first place, and even if there was such a claim, a fair use analysis requires a lot more than just saying "hey, it's not fair use." You have to at least do a four factors analysis. But, again, that's neither here nor there since there was no copyright claim in the first place.

And, unfortunately, since the Telluride Film Festival is now over, it's not clear if the festival will appeal this ruling, which will keep it busy in court for no clear benefit. But, in the meantime, the ruling has scared off multiple other festivals that had planned to show the film. As Gardner points out, all of this prior restraint was because Judge Kane couldn't even be bothered to realize who the defendant was, nor did he appear to recognize a blatant case of prior restraint when it landed on his desk:

Judge Kane has done a disservice by issuing a hasty ruling on a last-minute injunction bid — telling THR that this one was an easy call because producer Alan Elliott needed Franklin's permission. Except that's not what he was being asked to adjudicate! Elliot wasn't the defendant after all. Instead, film festivals (and distributors and news organizations) now have to worry about prior restraints on use of a celebrity's likeness and name. And sorry, Aretha, but this is hardly good news for artists who often use the names and likenesses of other artists in their creative endeavors. If she had made a deal that gave her the copyright on the footage — meaning the ability to control reproduction and distribution — that would be one thing; Here, she's attempting the ride the same vehicle that Lindsay Lohanattempted to use to stop a Pitbull song.

I agree with Gardner that this is a horrible ruling, from a judge who seemed to be in a rush to agree with Franklin, without even realizing what the issues were or who the parties were in court (and if they were subject to the contract). The only "saving grace" is that this ruling is at the district court level, rather than appeals court where it would become the rule for the circuit -- but it's already leading to prior restraint and scaring off film festivals from showing the film. And, you can bet that this case will be cited by others looking to use publicity rights to censor content in violation of the First Amendment.

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]]>not-how-it-workshttps://www.techdirt.com/comment_rss.php?sid=20150908/17485332198Tue, 18 Aug 2015 07:11:00 PDTAfter Internet Companies Protest, MPAA Declares Victory And Walks Away From Attempt To Backdoor SOPAMike Masnickhttps://www.techdirt.com/articles/20150817/17582631991/after-internet-companies-protest-mpaa-declares-victory-walks-away-attempt-to-backdoor-sopa.shtml
https://www.techdirt.com/articles/20150817/17582631991/after-internet-companies-protest-mpaa-declares-victory-walks-away-attempt-to-backdoor-sopa.shtmlfiled a lawsuit over the website MovieTube (actually a series of websites). While it may well be that MovieTube was involved in copyright infringement (and thus a lawsuit may be perfectly appropriate), the concerning part was that, as a part of the lawsuit, the studios were demanding a remedy that is not available by law: that anyone who provides any kind of service to MovieTube be forced to stop via a court injunction. This was the kind of tool that was a part of SOPA, which (you may recall) never became law. Among the requests in the lawsuit:

That the Registries and/or Registrars be required to transfer the domain names
associated with Defendants’ MovieTube Websites, or any subset of these domain names
specified by Plaintiffs, to a registrar to be appointed by Plaintiffs to re-register the domain names
in respective Plaintiffs’ names and under Plaintiffs’ respective ownership.

That content delivery networks and domain name server systems be required to
cease providing services to the MovieTube Websites and/or domains identified with the
MovieTube Websites and disable any access to caches they maintain for the MovieTube
Websites and destroy any caches they maintain for the MovieTube Websites.

That third parties providing services used in connection with any of the
MovieTube Websites and/or domain names for MovieTube Websites, including without
limitation, web hosting providers, cloud services providers, digital advertising service providers,
search-based online advertising services (such as through paid inclusion, paid search results,
sponsored search results, sponsored links, and Internet keyword advertising), domain name
registration privacy protection services, providers of social media services (e.g., Facebook and
Twitter), and user generated and online content services (e.g., YouTube, Flickr and Tumblr) be
required to cease or disable providing such services to (i) Defendants in relation to Infringing
Copies or infringement of Plaintiffs’ Marks; and/or (ii) any and all of the MovieTube
Websites.

A few days later, the good folks at EFF reminded everyone that SOPA did not pass, and this attempt to require a SOPA-level block is not actually what the law allows. Of course, as we noted soon after the SOPA fight, it appeared that some courts were pretending SOPA did pass, mainly in a variety of lawsuits involving counterfeit goods (rather than copyright infringement). And the movie studios rely on that in their more detailed argument in favor of this broad censorship order on third parties who aren't even a part of this case:

Courts have granted similar interim relief directed to third-party service providers in
cases with similar facts. The first such case, The North Face Apparel Corp. v. Fujian Sharing
Import & Export Ltd. (“Fujian ”), 10-Civ-1630 (AKH) (S.D.N.Y.), was brought against
defendants in China selling counterfeit goods through the Internet directly to consumers in the
United States. In Fujian, the district court granted an ex parte temporary restraining order,
seizure order, asset restraining order, and domain-name transfer order, later continued by a
preliminary injunction order.

Plaintiffs are asking the Court to grant a preliminary injunction not just against
the named Defendants, but also against a wide array of online service providers—from
search engines, to web hosts, to social networking services—and require them to “cease
providing services to the MovieTube Websites and Defendants[.]” None of those
providers is a party to this case, and Plaintiffs make no claim that any of them have
violated the law or play any direct role in the Defendants’ allegedly infringing activities.

Plaintiffs’ effort to bind the entire Internet to a sweeping preliminary injunction
is impermissible. It violates basic principles of due process and oversteps the bounds of
Federal Rule of Civil Procedure 65, which restricts injunctions to parties, their agents,
and those who actively participate in a party’s violations. The proposed order also
ignores the Digital Millennium Copyright Act (“DMCA”), which specifically limits the
injunctive relief that can be imposed on online service providers in copyright cases.
Even if Plaintiffs had named those providers as defendants and obtained a final
judgment against them, the DMCA would not permit the relief that Plaintiffs are asking
for at the outset of their case, where they have not even tried to claim that these
nonparties have acted unlawfully.

We represent Plaintiffs in the above-titled action. We write to inform the Court that after
Plaintiffs filed their Complaint (and presumably in response thereto), Defendants shut down their
infringing websites, and as of today, such websites remain offline. Plaintiffs are no longer
seeking preliminary injunctive relief at this time but will seek permanent relief as soon as
possible. Defendants’ time to answer or otherwise respond is August 19, 2015.

Moreover, because Plaintiffs have withdrawn their motion for preliminary injunctive
relief, the arguments offered by Amici Curiae... in opposition to that motion are
not ripe for consideration and are otherwise inapplicable. Accordingly, Plaintiffs have not
addressed them here. To the extent Amici are requesting what amounts to an advisory opinion,
such a request is improper and should not be entertained.

In short: we had hoped to quietly get a court to pretend SOPA existed so we could point to it as proof that this is perfectly reasonable... but the internet folks spotted it, so we'll just walk away quietly, and hope that next time, those darn internet companies, and those eagle-eyed lawyers at the EFF aren't so quick to spot our plan.

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]]>nice-try...https://www.techdirt.com/comment_rss.php?sid=20150817/17582631991Fri, 10 Jul 2015 14:56:47 PDTCourt Realizes That Maybe It Can't Order Cloudflare To Proactively Block Any New Grooveshark From Ever AppearingMike Masnickhttps://www.techdirt.com/articles/20150710/12033131616/court-realizes-that-maybe-it-cant-order-cloudflare-to-proactively-block-any-new-grooveshark-ever-appearing.shtml
https://www.techdirt.com/articles/20150710/12033131616/court-realizes-that-maybe-it-cant-order-cloudflare-to-proactively-block-any-new-grooveshark-ever-appearing.shtmlfiled a lawsuit. As part of this, it sought a restraining order and injunction, which it got. The RIAA then insisted that the restraining order applied to CDN provider Cloudflare, despite not actually being a part of the case. Cloudflare, as a non-party worried about the impact of such a restraining order, stepped into the case to protest, but the judge still ruled against Cloudflare despite the fact that the ridiculously broad injunction went really far, basically saying that no site with the word "Grooveshark" in the domain could use Cloudflare, even if that was a domain like "GroovesharkSucks-GoBuyMusic.com."

Cloudflare complied, but asked the court to modify the ridiculously overbroad injunction, as it could easily be read to say that Cloudflare itself then had to proactively police every use of its service to make sure no one tried to similarly post a Grooveshark-related site. Instead, it asked the judge to, at the very least, require the RIAA to alert Cloudflare to sites that it believed were violating the injunction. The RIAA, of course, argued that Cloudflare had the full responsibility of proactively making sure no new Groovesharks showed up. The judge has now clarified the original injunction, saying that, yes, the RIAA needs to alert Cloudflare to any future problematic sites, but denying Cloudflare's request for a five day turnaround time.

The initial injunction still seems tremendously problematic in just how broad it is. Here's what it covers, saying that basically anyone is barred from:

Using the Grooveshark Marks in any manner in connection with the advertising,
offering for sale, or sale of any service or product, not provided by or authorized
by Plaintiff UMG.

Committing any acts calculated to cause consumers to believe that the Counterfeit
Service or any other use of the Grooveshark Marks is offered under the control
and supervision of Plaintiff UMG or sponsored or approved by, or connected
with, or guaranteed by, or produced under the control and supervision of Plaintiff

Infringing any of the Grooveshark Marks and damaging Plaintiff
goodwill;

Otherwise competing unfairly with Plaintiff UMG in any manner; or

Using, linking to, transferring, selling, exercising control over, or otherwise
owning the domain names grooveshark.io or groovesharkpw or any other domain
name that incorporates, in whole or in part, any of Grooveshark Marks (the
"Infringing Domain Names").

Directly or secondarily infringing Plaintiffs' copyrighted sound recordings via the
Counterfeit Service or any variations thereof.

While I don't care what happens to Grooveshark itself or these copyrights, it seems quite disturbing that a judge can issue such a broad injunction that can impact so many third parties, potentially making them liable should someone do something that "unfairly competes with Universal Music in any manner." Part of the point of SOPA was to add these kinds of injunctions to the law but Congress did not approve SOPA. So why is the court acting like it has this power?

Again, it's easy to say "meh, no big deal, whoever set up these sites were clearly infringing" or even to attack them for setting up a fake Grooveshark. But this goes beyond that, and raises serious questions about the court's powers to order third parties to block all access to websites without full due process.

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]]>that's-not-how-this-workshttps://www.techdirt.com/comment_rss.php?sid=20150710/12033131616Fri, 12 Jun 2015 05:33:16 PDTCanadian Court: Yes, We Can Order Google To Block Websites GloballyMike Masnickhttps://www.techdirt.com/articles/20150611/13104231311/canadian-court-yes-we-can-order-google-to-block-websites-globally.shtml
https://www.techdirt.com/articles/20150611/13104231311/canadian-court-yes-we-can-order-google-to-block-websites-globally.shtmlblock access to a website globally. The case involved one company accusing another of selling counterfeit or copied equipment, and despite Google not even being a party to the case, said that Google needed to make sure no one could find the site in question via Google anywhere in the world. As we noted, this had tremendously problematic consequences. For example, China doesn't think anyone should be able to learn about the protests in Tiananmen Square. Can it now order Google to remove all links to such references globally? That result seems crazy. And, of course, there was a separate issue of how the court even had jurisdiction over Google, seeing as it does not have any operations, staff or servers in British Columbia. Google stepped in to protest the injunction at the appeals court.

Unfortunately, the court has now ruled against Google, using the same sort of logic the lower court did -- basically arguing that because Google is available in British Columbia, the court has jurisdiction, and because it's trying to stop what it deems to be illegal actions from reaching Canada's shores, it has every right to order Google to block things worldwide, lest someone from British Columbia decide to type "google.com" into their browser to avoid the "google.ca." On the question of "doing business" in BC, the appeals court basically accepts the lower court's confused understanding of things:

While Google does not have servers or offices in the Province and does not have resident staff here, I agree with the chambers judge’s conclusion that key parts of Google’s business are carried on here. The judge concentrated on the advertising aspects of Google’s business in making her findings. In my view, it can also be said that the gathering of information through proprietary web crawler software (“Googlebot”) takes place in British Columbia. This active process of obtaining data that resides in the Province or is the property of individuals in British Columbia is a key part of Google’s business.

Google says that even if it is concluded that it carries on business in British Columbia, the injunction was not properly granted, because it did not relate to the specific business activities that Google carries on in the Province. In my view, the business carried on in British Columbia is an integral part of Google’s overall operations. Its success as a search engine depends on collecting data from websites throughout the world (including British Columbia) and providing search results (accompanied by targeted advertising) throughout the world (including British Columbia). The business conducted in British Columbia, in short, is the same business as is targeted by the injunction.

In other words, if you don't want to be subject to the laws of BC (with control over your entire global operations) don't index websites based in BC? That's crazy. While I doubt it will happen, it's got to be tempting for some at Google to just say "okay, no more Google for BC or any website in BC."

Now as for the nutty idea that a court in BC has jurisdiction over all of Google's global operations, again, the court doesn't seem even remotely concerned about that. It's response is basically "yeah, so?"

Google raises the specter of it being subjected to restrictive orders from courts in all parts of the world, each concerned with its own domestic law. I agree with the chambers judge that it is the world-wide nature of Google’s business and not any defect in the law that gives rise to that possibility. As well, however, the threat of multi-jurisdictional control over Google’s operations is, in my opinion, overstated. Courts must, in exercising their powers, consider many factors other than territorial competence and the existence of in personam jurisdiction over the parties. Courts must exercise considerable restraint in granting remedies that have international ramifications.

And it notes that previous cases have said that, sure, BC courts have "worldwide jurisdiction."

At one time the courts of this Province refrained from granting injunctions that enjoined activities outside of British Columbia.... In 1988, however, the English Court of Appeal held that it had jurisdiction to issue a worldwide Mareva injunction.... It is now over 25 years since the Supreme Court of British Columbia first issued a worldwide injunction.... The jurisdiction to do so was re-confirmed .... and is, today, well-established.

Google, quite reasonably, points out that while injunctions make sense against parties that actually break the law, it makes no sense to issue an injunction against a third party that has nothing to do with the party that actually broke the law. The court goes on a long and winding road saying "sure, but... in this case, it's okay."

Finally, the court addresses another concern raised by the Canadian Civil Liberties Association, noting that banning access to a website worldwide has serious free speech consequences. Once again, the court says "sure, but, we don't care in this case."

For that reason, courts should be very cautious in making orders that might place limits on expression in another country. Where there is a realistic possibility that an order with extraterritorial effect may offend another state’s core values, the order should not be made.

In the case before us, there is no realistic assertion that the judge’s order will offend the sensibilities of any other nation. It has not been suggested that the order prohibiting the defendants from advertising wares that violate the intellectual property rights of the plaintiffs offends the core values of any nation. The order made against Google is a very limited ancillary order designed to ensure that the plaintiffs’ core rights are respected.

I note, as well, that the order in this case is an interlocutory one, and one that can be varied by the court. In the unlikely event that any jurisdiction finds the order offensive to its core values, an application could be made to the court to modify the order so as to avoid the problem.

In short, sure, banning speech around the globe from one court in British Columbia, Canada could have serious global free speech concerns, but... we really don't like this website, so we're not going to change the ruling. In fact, later in the ruling, the court basically says "hey, the idea that there may be some 'legitimate' speech on this website we're ordering blocked globally is totally speculative":

There has, in the course of argument, been some reference to the possibility that the defendants (or others) might wish to use their websites for legitimate free speech, rather than for unlawfully marketing the GW1000. That possibility, it seems to me, is entirely speculative. There is no evidence that the websites in question have ever been used for lawful purposes, nor is there any reason to believe that the domain names are in any way uniquely suitable for any sort of expression other than the marketing of the illegal product. Of course, if the character of the websites changes, it is always open to the defendants or others to seek a variation of the injunction.

And, thus, British Columbia believes it can order global blocking of any website its courts deem problematic in BC. One wonders if we'll start to see "censorship tourism" migrating to BC courts now that its doors are open for global censorship orders.

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]]>that seems like a problemhttps://www.techdirt.com/comment_rss.php?sid=20150611/13104231311Fri, 29 May 2015 11:51:38 PDTInsanity Rules In Ireland: Media Ordered Not To Report On Parliamentary SpeechMike Masnickhttps://www.techdirt.com/articles/20150529/09193731148/insanity-rules-ireland-media-ordered-not-to-report-parliamentary-speech.shtml
https://www.techdirt.com/articles/20150529/09193731148/insanity-rules-ireland-media-ordered-not-to-report-parliamentary-speech.shtmla speech in which she detailed some charges against an Irish media tycoon, Denis O’Brien, claiming that the Irish Bank Resolution Corporation, was giving him ridiculously favorable terms on bank loans. Here's the main chunk of it:

I have no doubt that the special liquidator is more than capable of carrying out such a review, but his direct involvement in the sale process, his relationship with the eventual purchaser of Siteserv and his current actions in the High Court in supporting Mr. Denis O'Brien against RTE place him in a position where there is, at the very least, a perceived if not an actual conflict of interest. The review is not confined to Siteserv, but that is the transaction that prompted a review in the first instance. I worry about the transactions that have been excluded from the review given what that we now know that in the final months before prom night, the relationship between the Department and IBRC had completely broken down. If deals were being done without the knowledge or input of the Minister, we must know what those were.

We are now aware, for example, that the former CEO of IBRC made verbal agreements with Denis O'Brien to allow him to extend the terms of his already expired loans. We also know that the verbal agreement was never escalated to the credit committee for approval. I am led to believe and would welcome clarification by the Minister that the rates applicable to the extension were extremely favourable. I understand that Mr. O'Brien was enjoying a rate of approximately 1.25% when IBRC could, and arguably should, have been charging 7.5%. Given that we are talking about outstanding sums of upwards of €500 million, the interest rate applied is not an insignificant issue for the public interest. We also know that Denis O'Brien felt confident enough in his dealings with IBRC that he could write to Kieran Wallace, the special liquidator, to demand that the same favourable terms extended to him by way of a verbal agreement be continued. We now have Kieran Wallace, who has been appointed by the Government to conduct the IBRC review, joining with IBRC and Denis O'Brien in the High Court to seek to injunct the information I have outlined from coming into the public domain. Surely, that alone represents a conflict.

In documents released to me under freedom of information, the Minister, his officials, the Central Bank and even the troika acknowledge that IBRC - the former Anglo Irish Bank - is no ordinary bank and that there is a significant public interest as the bank was fully nationalised and was in wind-down mode. They all accept that this is the people's money we are dealing with and that there can be no dispute regarding the public interest in this.

The three-day injunction hearing was told Mr O’Brien wanted to restrain publication of the broadcast report because it breached his privacy rights and would cause him incalculable commercial damage.

IBRC, which brought a separate but related application before the court, supported his case.

Apparently a bunch of people in Ireland still haven't heard about the Streisand Effect. Because now the story is blowing up everywhere. Oh, and if you're interested, you can even see the speech here:

In other words, this story that ordinarily wouldn't have received much international press coverage at all -- is now getting tons of attention. Now, perhaps O'Brien and his lawyers are taking a calculated risk that the only place this issue really matters is at home in Ireland, and shutting people up about it there will be more important. After all, the accusations probably are big news there. But, it still seems like its backfiring massively. The internet is still a (mostly) global place, and the injunction not only calls that much more attention to the original accusations, but it makes everyone involved in the injunction look really foolish.

And it does seem to be backfiring in Ireland as well. While such injunctions are all too common in Ireland (and nearby in the UK, for that matter), the fact that it's flat out censoring a Parliamentary speech appears to have broken new ground that has a lot of people up in arms:

But the extension of the terms of that injunction to cover a parliamentary speech has shocked the Irish media community, not to mention the public.

It had extraordinary effects. For example, RTÉ reporter Philip Boucher Hayes tweeted yesterday afternoon that the Drivetime show was about to play Murphy’s speech, but the piece was not broadcast and his tweet was later deleted.

RTÉ news bulletins mentioned that Murphy had spoken but didn’t quote what she had said or play clips. Online reports quoting Murphy were removed, stating only that Murphy had spoken about O’Brien. Similarly, the Irish Times’s report was silent on what Murphy said but it did provide a link to her speech on the Oireachtas site. (Evidently - hat tip: Padraig Reidy - the Irish Times did initially report her words).

The report on the matter by Ireland’s best-selling daily newspaper, the Irish Independent, said: “Mr O’Brien successfully stopped RTÉ from broadcasting the details which Ms Murphy raised in the Dá il”.

Whatever short term benefit O'Brien and his lawyers thought they were getting with this injunction, it appears not to have worked very well.

For the last eighteen months, the Mississippi Attorney General has threatened to
prosecute, sue, or investigate Google unless it agrees to block from its search engine, YouTube
video-sharing site, and advertising systems, third-party content (i.e., websites, videos, or ads not
created by Google) that the Attorney General deems objectionable. When Google did not agree
to his demands, the Attorney General retaliated, issuing an enormously burdensome subpoena
and asserting that he now has “reasonable grounds to believe” that Google has engaged in
“deceptive” or “unfair” trade practice under the Mississippi Consumer Protection Act (MCPA),
which allows for both civil and criminal sanctions. The Attorney General did so despite having
publicly acknowledged in a letter to Congressional leaders that “federal law prevents State and
local law enforcement agencies from prosecuting” Internet platforms. The Attorney General
took these actions following a sustained lobbying effort from the Motion Picture Association of
America.

As Google explains, there is no legal basis for this investigation:

First, Section 230 of the Communications Decency Act (“CDA”) precludes state
regulation of Google based upon the third-party content available on its services or the manner in
which Google moderates that content. “Congress provided broad immunity under the CDA to
Web-based service providers for all claims stemming from their publication of information
created by third parties.” Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008).

Second, the First Amendment protects Google’s organization and display of third-party
information (e.g., search results), prohibits retaliation for how it organizes and displays such
content, and bars state action that limits public access to constitutionally-protected speech. As
multiple courts have found, the state can no more tell a search engine what results to publish than
it can tell a newspaper what editorials to run. See, e.g., Jian Zhang v. Baidu.com Inc., 10 F.
Supp. 3d 433, 436, 438 (S.D.N.Y. 2014). Nor can the state “encourag[e] the suppression of
speech in a manner which can reasonably be interpreted as intimating that some form of
punishment or adverse regulatory action will follow the failure to accede to the official’s
request.” Zieper v. Metzinger, 474 F.3d 60, 65-66 (2d Cir. 2007) (internal quotation marks
omitted).

Third, the subpoena violates the Fourth Amendment by demanding information about
conduct that is plainly lawful. “[I]nvestigations premised solely upon legal activity are the very
type of ‘fishing expeditions’ that” the Supreme Court has held violate the Fourth Amendment
and “do[] not pass muster under any standard.” Major League Baseball v. Crist, 331 F.3d 1177,
1187-88 (11th Cir. 2003) (citations omitted).

Fourth, much of the Attorney General’s subpoena is preempted by the Copyright Act or
the Food, Drug and Cosmetics Act (“FDCA”). Many of the Attorney General’s inquiries
concern copyright infringement—but copyright is exclusively a matter of federal law, which the
Attorney General may not enforce and with which Google fully complies. See GlobeRanger
Corp. v. Software AG, 691 F.3d 702, 705-06 (5th Cir. 2012). Similarly, the Subpoena seeks
information about Google’s practices ten years ago with regard to advertisements relating to the
importation of prescription drugs. But the FDCA regulates importation of prescription drugs and
preempts enforcement actions not brought “by and in the name of the United States.” 21 U.S.C.
§ 337.
omitted).

In short, Jim Hood is on a massive fishing expedition over things he doesn't understand, over which he has no jurisdiction, for issues where Google fully complies with the law. The filing further notes that, yes, there is bad content on the internet, but that Google actually is extraordinarily active in pushing it down in its search results and seeking to stop people from accessing that content. But, its voluntary efforts are very different from being required to change its search results via an order from a government official:

But if a state Attorney General can punish, irrespective of well-established federal law,
any search engine or video-sharing platform whenever he finds third-party content he deems
objectionable, search engines and video-sharing platforms cannot operate in their current form.
They would instead have to pre-screen the trillions of websites and millions of videos on the
Internet, blocking anything they had not yet reviewed from being publicly accessible so as to
avoid the ire of even a single state or local regulator. This would “severely restrict the
information available on the Internet,” Batzel v. Smith, 333 F.3d 1018, 1027-28 (9th Cir. 2003),
precisely the opposite of the “unfettered” Internet the CDA and the First Amendment protect.
The Attorney General may prefer a pre-filtered Internet—but the Constitution and Congress have
denied him the authority to mandate it.

Google further lists out the various threats and statements Hood has made:

In several letters to Google, the Attorney General has falsely accused it of, among other
things, “aiding and abetting” and even “encourag[ing] . . . illegal activity.” Id. Ex. 5 at 3. He has
characterized Google as an “accessory before the fact” in criminal conduct, id. Ex. 2 at 1,
asserted it has “no corporate conscience for the safety of its customers,” id. Ex. 17 at 1, and
claimed that Google “facilitates and profits from numerous illegal online activities,” id. Ex. 17 at
2. See also id. Ex. 15 at 3 (page 1 of the draft letter). He has threatened to “take legal action to
change [Google’s] behavior,” id. Ex. 2 at 3, outlining “[p]ossible [c]auses of [a]ction” against
Google in a presentation to the National Association of Attorneys General (“NAAG”), id. Ex. 10
at 53-57, sending numerous requests for information, see, e.g., id. Exs. 1, 5, & 22, and a broad
litigation hold notice, id. Ex. 8. The Attorney General has demanded in several meetings that
Google pre-screen or block third-party content and search results that merely may involve illegal
activity, even at the cost of burdening lawful, protected speech. See, e.g., id. Ex. 2 at 2; id. Ex.
22 at 2; id. Ex. 27 at 5:13-6:24, 7:16-8:14. He has even sought a “24-hour link through which
attorneys general[]” can request that links to particular websites be removed from search results
“within hours,” presumably without judicial review or an opportunity for operators of the target
websites to be heard. Id. Ex. 5 at 3.

That last one is crazy. Hood is flat out demanding a tool for government officials to censor the internet, based solely on those officials' requests.

The Attorney General has cited no evidence at all of misconduct by Google to back up
these inflammatory allegations. He has instead identified a handful of web pages among the
trillions reflected in Google’s index, and a smattering of videos amongst the millions of hours
watched every month on YouTube, and asserted that some of the content of those websites and
videos (all created by third parties) is unlawful.... He has noted that advertising occasionally
appears alongside the videos about which he complains.... And
he has criticized some of Autocomplete’s algorithmically-generated predictions.

Whatever that says about the actions of those who created and developed the content
about which the Attorney General complains, it in no way implies that Google has violated the
law. Given the vast quantity of third-party content available on the Internet, it is no surprise that
some small percentage of the information found via Search or posted on YouTube is
inappropriate or unlawful. Statutes such as the CDA and DMCA accept the inevitability of
problematic content online as the cost of a free and open Internet, and squarely immunize Google
and other interactive service providers from liability arising from such third-party content.

Furthermore, Google debunks the notion that it has done nothing to deal with such sites:

Nevertheless, Google has worked to address the Attorney General’s concerns.... In response to his questions, Google provided over
one-hundred pages of written answers detailing its policies and practices for voluntarily
combating abuse across its services, and voluntary shared nearly 100,000 pages of supporting
documents. YouTube engineers even created a custom reporting tool and trained the Attorney
General’s office on how to use it so that they could report for expedited review and possible
removal videos they deemed objectionable.... To date, over half a year
later, the Attorney General has used this tool to report only seven videos.... Nor, to the
best of Google’s knowledge, has the Attorney General filed any legal action against any of the
actual creators of the specific underlying content to which he has objected. Google has also
explained the applicability of CDA immunity and the DMCA safe-harbor provisions to services
like Google, as well as the constitutional concerns raised by his demands

That part I bolded is the key. It shows the reality of the situation, which is that Hood isn't really trying to stop bad content online, no matter how many times he argues otherwise -- he's just attacking Google.

There's much more in the filing, including arguing that Hood is violating the First Amendment directly in his most recent subpoena to Google:

The Attorney General has made clear that he disagrees with how Google exercises
editorial judgment in the composition of its search results and YouTube content, and wishes to
force Google to adopt editorial judgments that he would prefer. For content he disfavors, he asks
that Google censor from search results links to websites that are readily available on the Internet,
regardless of whether any court has found them unlawful, and has even gone so far as to demand
that certain search terms themselves be banned.... The Attorney General has also demanded that links to disfavored content be demoted
in search rankings and marked with a warning to users.... Conversely, he has asked Google to promote favored content (e.g., Hollywoodapproved
websites) by raising its standing in search results and indicating its favored status with
an icon.... Such demands by a government
official to displace a private party’s editorial judgment in order to favor certain speech or
speakers over others strike at the heart of the First Amendment.

And, of course, just because some of the content targeted may not be protected, that doesn't relieve the First Amendment problems:

State enforcement actions targeting unprotected speech can violate the First Amendment
by limiting the “public’s access to constitutionally protected matter.” Smith v. People of
California, 361 U.S. 147, 153 (1959). A state may not penalize a bookseller for unknowingly
offering obscene material because he would then “tend to restrict the books he sells to those he
has inspected,” and the limits on his ability to inspect content would “tend to restrict the public’s
access to [content] which the State could not constitutionally suppress directly.” ....
Similarly, a state may not sanction a magazine for unknowingly publishing unlawful
advertisements because “publishers cannot practicably be expected to investigate each of their
advertisers,” and the risk of sanction could lead a publisher to reject advertisements that “could
conceivably be deemed objectionable by the [government],” which would deprive the public of
access to protected speech, and the potential advertisers an “avenue of access to the public.” MANual Enters., Inc. v. Day, 370 U.S. 478, 493 (1962).

There's a lot more in there, but those are some of the high points. Hood has been provoking Google (at the behest of the MPAA and others) for a long time. It appears that Google has hit back.

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]]>well,-wellhttps://www.techdirt.com/comment_rss.php?sid=20141219/09440829488Fri, 17 Oct 2014 14:43:07 PDTUK Court Blocks Author From Publishing A Book About His Own Sexual Abuse, At Ex-Wife's RequestTimothy Geignerhttps://www.techdirt.com/articles/20141017/06444428855/uk-court-blocks-author-publishing-book-about-his-own-sexual-abuse-ex-wifes-request.shtml
https://www.techdirt.com/articles/20141017/06444428855/uk-court-blocks-author-publishing-book-about-his-own-sexual-abuse-ex-wifes-request.shtml
There's no doubt that even closely related or allied countries treat the issue of free speech quite differently. Perhaps our most natural European cultural equivalent, Britain, has laws that I often find either confusing or silly, with a particular eye towards their long-panned libel laws. But even correcting for cultural differences, I'm having a real hard time figuring out how a UK court can issue an injunction barring the publishing of an author's recounting of his own personal history with sexual abuse at his ex-wife's request. You'll have to forgive the vagueness here, because there are simply no names being discussed on the matter due to the ongoing litigation.

A British performing artist has been forced to shelve a book based on his experiences of childhood sexual abuse after his ex-wife obtained an injunction to prevent their young son from reading it. In a case that is alarming freedom of speech campaigners and which publishers say is deeply disturbing, the court of appeal has ordered that the artist cannot publish key sections of the book until the issue has been decided at trial.

However, his ex-wife’s lawyers dispute claims that the case could set a precedent undermining the rights of other authors, arguing that it is concerned only with the rights of one child, who has a number of health problems, who they say would suffer catastrophic psychological distress were he to read parts of his father’s work.

Let me flesh this out for you a bit. A well-known artist in the UK is publishing a memoir, including sections that deal with the sexual abuse he suffered as a child. His ex-wife obtained the injunction on publishing that factual account of his life because she believes it will harm, by her lawyer's own admission, a single child the two had together. That child is suffering a wide range of health problems, including Asperger's Syndrome, and the ex-wife is suggesting that reading the father's account would cause further harm. All of this, by the way, relies on a Victorian-era case the dealt with the intentional psychological harm some guy perpetrated on a woman in a bar by playing a practical joke on her. Seriously, I'm not making that crap up.

To be clear, the injunction is temporary, but the alarming part is that the court seems to be staying the publication in order to ask an incomplete question.

While accepting that there was a public interest in the book being published, the court granted a temporary injunction and ruled that the question of whether the boy’s rights should take priority over those of his father should be decided at a full trial.

The problem here is that the court shouldn't be tossing that public interest out so easily. Imagine, if you will, a court system that disallows factual information to be revealed simply because someone may find it unpleasant. In this particular case, we have a child with medical issues to consider, a potentially sympathetic "victim", but it need not be so, based on the law if this case sets the wrong precedent. You might simply see young children used as excuses to keep controversial information from ever seeing the light of day.

Add on top of that the concept of keeping a victim of sexual abuse from being able to do as he pleases with that information and we're suddenly diving into the arena in which the government is abusing him all over again. Not overtly, of course, but if intimidating homosexuals into staying in the closet is abuse, and it is, the same should be said of abuse-victims being prevented from telling their factual stories. Above and beyond all that, the parents could have tried to reach an agreement to simply not allow their child to read the book until a certain age.

Instead, the mysterious ex-wife is robbing the public of a piece of literature in order to protect her son from being parented. Hey, my UK peeps: either you have free speech or you don't. I know you don't have our Constitution, but if the status of speech is such that you can't write about your own lives, you may have a problem.

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]]>bwah!?!?https://www.techdirt.com/comment_rss.php?sid=20141017/06444428855Fri, 2 May 2014 14:22:00 PDTItaly's First Attempt To Block Websites With No Judicial Review Reveals How Dangerous The System IsMike Masnickhttps://www.techdirt.com/articles/20140430/12380327080/italys-first-attempt-to-block-websites-with-no-judicial-review-reveals-how-dangerous-system-is.shtml
https://www.techdirt.com/articles/20140430/12380327080/italys-first-attempt-to-block-websites-with-no-judicial-review-reveals-how-dangerous-system-is.shtmlregulators instead of the courts. That is, regulator AGCOM could now simply declare -- with no judicial review or due process -- that certain sites were infringing and then order ISPs to block access to those sites. While other Italian prosecutors have sought to do the same thing, AGCOM now has the official power to delete websites off the Italian internet if they so much claim they're somehow infringing.

Recently, AGCOM decided to exercise its new power, issuing its first administrative blocking injunction against a site called Cineblog01 -- meaning that ISPs in Italy need to block users from accessing the site. Now, it does appear that the site was linking and/or embedding certain films that may have been infringing. But there are still serious problems with the injunction. IPKat, who wrote about this, details three fairly serious problems with the way that AGCOM handled this.

AGCOM declared the site guilty of "massive infringement" based on having just eleven movies. That seems like a ridiculously low threshold. Under such a threshold nearly any user-generated content site might be declared as engaging in "massive infringement."

Much is made of the claim that AGCOM tried to reach the operator of the site. They are required to try to communicate with the "website manager." Since the operators of the site used a privacy guard feature from their Panamanian registrar for their Whois entry, AGCOM basically just reached out to that Panamanian registrar, and when there was no response, concluded that the site's operators were ignoring the requests. While we can argue over whether or not the site should have provided a better means to communicate, it still seems fairly weak to argue that sending an email to a third party like that constitutes true notification of the complaint.

Third, and most importantly, IPKat checked out the site and the eleven movies in question... and found that they all had been removed already. In other words, it seems fairly clear the site was perfectly amenable to a standard notice-and-takedown type of system, but AGCOM went all in and ordered the entire site blocked.

It's entirely possible that the site had bad actors who were violating the law, but it certainly doesn't look like AGCOM is being all that careful to make sure that's the case, and that's almost certainly going to lead to problematic results.

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]]>this-is-a-problemhttps://www.techdirt.com/comment_rss.php?sid=20140430/12380327080Fri, 4 Apr 2014 08:30:00 PDTInnocence Of Muslims Actress Says Court Should Ignore Copyright Office Rejecting Her Copyright ClaimMike Masnickhttps://www.techdirt.com/articles/20140403/16483926790/innocence-muslims-actress-says-court-should-ignore-copyright-office-rejecting-her-copyright-claim.shtml
https://www.techdirt.com/articles/20140403/16483926790/innocence-muslims-actress-says-court-should-ignore-copyright-office-rejecting-her-copyright-claim.shtmlcopyright interest in the film, allowing her to demand a widespread and highly questionable order to force Google to take down all copies of the video on its platforms -- doesn't think there's anything wrong with the ruling or with the 9th Circuit's denial of Google's request to stay the order until the case could be reconsidered. As we noted earlier, the court has asked for briefs on whether or not it should reconsider the request for the stay (prior to even deciding if it should reconsider the entire ruling). Garcia's lawyer, Cris Armenta has filed their brief on this issue, and as with many earlier filings, it is problematic on many levels.

In short, though, she of course argues that the original ruling was correct, that her "copyright" has been infringed and that any ruling to the contrary leaves her in great danger. Despite plenty of copyright lawyers and experts reacting in horror to the original ruling, she insists it's obvious that every actor in a film gets a copyright in their own performance. As for the fact that the Copyright Office itself rejected her copyright claim saying that "longstanding practices do not allow a copyright claim by an individual actor or actress in his or her performance contained within a motion picture," Garcia says that the court should just ignore all that bluster. I mean, really, who does the Copyright Office think it is, anyway? Actually, she first challenges the "questionable provenance" of the Copyright Office's rejection of her copyright, since she says Google got a copy before she did, and then that it apparently doesn't include a statement from the Copyright Office that it "is a true and correct copy of the record in question." Even then, she begs the court to ignore the Copyright Office.

Further, this court should not defer to the letter because it is
inconsistent with the Copyright Office's previous interpretation of the
Copyright Act.... Previously, the Copyright Office interpreted the Copyright Act much differently than it does now. As recently as 2010, the Office explicitly stated that performances consisting of "the art of imitating or acting out situations, characters, or other events" are copyrightable as pantomime.

Of course, that's a totally different issue. Yes, the Copyright Office says that pantomimes are copyrightable (a different issue that has its own problems), but that's unrelated to the question of whether an actor in a motion picture retains the copyright in their performance. Instead, Garcia tries to reverse this question, by saying that nowhere has the Copyright Office ever said that actors do not get a copyright in their performance. Because anything the Copyright Office doesn't say is clearly what they allow.

With respect to the issue of motion pictures, nowhere does the Compendium state that actors who are not employees and who have not transferred the rights in their work are not entitled to copyright protection.... Indeed, the Compendium only states that a film's producer is the "author" for purposes of copyright in situations where the participants are employees or have entered into work-for-hire agreements. If the Office's "longstanding practices" truly forbade an actor who never assigned the rights in her performance from asserting copyright, the Office would have mentioned those practices before now.

Of course, the other problem with Garcia's filing is that it doesn't actually focus on the issue at hand. The Court specifically asked that the filings focus on the question of whether or not an en banc panel should rehear the question of a stay for the injunction. Garcia's filing focuses on the overall ruling, not the specifics of the stay, and why the initial injunction can't be stayed until further proceedings occur. That said, given the way Kozinski has handled this so far, who knows what will happen.

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]]>well,-duhhttps://www.techdirt.com/comment_rss.php?sid=20140403/16483926790Tue, 18 Mar 2014 19:59:00 PDTMyriad Genetics Loses Again: Court Refuses To Grant Preliminary Injunction Against Rival Genetic Testing CompanyGlyn Moodyhttps://www.techdirt.com/articles/20140317/07441126588/myriad-genetics-loses-again-court-refuses-to-grant-preliminary-injunction-against-rival-genetic-testing-company.shtml
https://www.techdirt.com/articles/20140317/07441126588/myriad-genetics-loses-again-court-refuses-to-grant-preliminary-injunction-against-rival-genetic-testing-company.shtml
In June last year we reported on a major ruling from the Supreme Court, which effectively said that you can't patent genes. That ripped a huge hole in Myriad Genetics' monopoly on testing for the BRCA1 and BRCA2 genes that are linked to breast cancer, but that didn't stop it suing some of the new entrants to this market. In particular, it asked a federal judge in Utah to order one of them, Ambry Genetics, to stop providing its gene testing service for those genes. The American Civil Liberties Union filed an amicus brief opposing Myriad's motion, together with a number of other organizations. Here's the latest development in the case:

Yesterday, a federal district court judge in Utah rejected Myriad's motion. Judge Shelby found that Myriad had failed to establish that it was likely to win its lawsuit against Ambry, because there are substantial questions about whether Myriad's patent claims improperly monopolize products of nature, laws of nature, and abstract ideas.

While Myriad's lawsuits can proceed -- for now -- patients continue to have the right to choose other BRCA genetic testing providers. They can obtain a second opinion before making life-changing medical decisions. And they can decide which laboratory will have their data.

That last point is important. As the ACLU explains:

Myriad has used its patents over the genes to create the largest database in the world about BRCA genetic mutations and their medical significance and refuses to share that information with the scientific community.

That underlines another huge problem with gene patents: they allow monopoly-holders to lock up key medical information that could have been used by researchers around the world to advance knowledge and come up with new treatments. Far from accelerating innovation, as apologists for patents like to claim, they throw huge roadblocks in its way. It's yet another reason why the Supreme Court's decision to strike down gene patents should be celebrated.

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]]>battling-cancerhttps://www.techdirt.com/comment_rss.php?sid=20140317/07441126588Wed, 18 Sep 2013 23:23:30 PDTAnother Court Won't Block Dish's AutoHopper; TV Networks Plan To Shoot Selves In Foot In ResponseMike Masnickhttps://www.techdirt.com/articles/20130918/16253724574/another-court-wont-block-dishs-autohopper-tv-networks-plan-to-shoot-selves-foot-response.shtml
https://www.techdirt.com/articles/20130918/16253724574/another-court-wont-block-dishs-autohopper-tv-networks-plan-to-shoot-selves-foot-response.shtmlcomplete victory against Fox and NBC in California over the legality of DISH's AutoHopper feature, which skips over commercials with shows that the DVR offering records. However, there were two separate lawsuits on this issue: that one in California, and another one involving CBS and ABC in New York... and that court has basically ruled the same way, refusing to grant the networks an injunction to block the DISH product. The full ruling is under seal (most likely to redact certain parts) and will be released with redactions sometime soon (next week, I think).

As the link above notes, the court did say that CBS could try to unwind its retransmission agreement with DISH, arguing that DISH misled the company when they were working on that agreement. It also notes that ABC's carriage agreement with DISH expires at the end of this month, and that "negotiations [are] not going well, with a possible blackout happening soon." In other words, the networks are likely about to shoot themselves (and the public) in the foot by pulling their channels from DISH in a petulant act of self-harm, because they're upset that DISH is innovating and offering the public what they want in a manner that the networks won't do.

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]]>and-off-we-gohttps://www.techdirt.com/comment_rss.php?sid=20130918/16253724574Thu, 21 Mar 2013 12:23:53 PDTIsoHunt Still Guilty Of Contributory InfringementMike Masnickhttps://www.techdirt.com/articles/20130321/12104822407/isohunt-still-guilty-contributory-infringement.shtml
https://www.techdirt.com/articles/20130321/12104822407/isohunt-still-guilty-contributory-infringement.shtmlis guilty of contributory copyright infringement, as per the Supreme Court's ruling in the Grokster case. They basically agree with the district court ruling, which found that IsoHunt hit on all of the factors that were present to create "inducement" (a theory of copyright that Congress had previously rejected, but which the Supreme Court decided to make exist in the Grokster case). That is, the court agreed that there was distribution of a "device or product", including acts of infringement, and (most importantly) that IsoHunt itself was promoting the product's use to infringe on copyrights. However, on the (slightly) good side of things, the court rejected the district court's broad injunction against IsoHunt as going overboard.

The court goes through the "Grokster" inducement factors, but the results are bit troubling. The first factor is the distribution of a device or product for infringement. Here, IsoHunt argued that it was just providing a service for searching and finding stuff, but wasn't actually distributing any file sharing software "product" or "device." The court doesn't buy it, but I find its argument troubling.

Unlike patents, copyrights protect
expression, not products or devices. Inducement liability is
not limited, either logically or as articulated in Grokster III,
to those who distribute a “device.” As a result, one can
infringe a copyright through culpable actions resulting in the
impermissible reproduction of copyrighted expression,
whether those actions involve making available a device or
product or providing some service used in accomplishing the
infringement. For example, a retail copying service that
accepts and copies copyrighted material for customers after
broadly promoting its willingness to do so may be liable for
the resulting infringement although it does not produce any
copying machines or sell them; all it provides is the “service”
of copying. Whether the service makes copies using
machines of its own manufacture, machines it owns, or
machines in someone else’s shop would not matter, as
copyright liability depends on one’s purposeful involvement
in the process of reproducing copyrighted material, not the
precise nature of that involvement.

That's problematic on multiple levels. First, it's clearly expanding the Supreme Courts limitations in Grokster, by arguing that effectively the requirement for distributing a product or service used to infringe is no longer a requirement at all! In other words, they basically argue that the first factor doesn't matter. Furthermore, the example they use doesn't make much sense either. The "retail copying service" they describe doesn't need inducement theory to be found guilty, as they appear to be violating the reproduction right directly.

The second factor is not difficult to prove. It's obvious that some people used IsoHunt to infringe. There's no real argument there. The third element gets a little trickier. It's the question of how much did IsoHunt promote "its use to infringe." The appeals court, like the district court, uses the fact that IsoHunt had a listing of "box office movies" as proof of promoting infringing uses, along with some of IsoHunt operator Gary Fung's own actions:

For a time, for
example, isoHunt prominently featured a list of “Box Office
Movies,” containing the 20 highest-grossing movies then
playing in U.S. theaters. When a user clicked on a listed title,
she would be invited to “upload [a] torrent” file for that
movie. In other words, she would be asked to upload a file
that, once downloaded by other users, would lead directly to
their obtaining infringing content. Fung also posted
numerous messages to the isoHunt forum requesting that
users upload torrents for specific copyrighted films; in other
posts, he provided links to torrent files for copyrighted
movies, urging users to download them

While you can see why this might be seen as promoting the use to infringe, there's a leap here: which is that it assumes that any and all box office movies couldn't possibly also have torrents. That's not definitively the case. It is entirely possible that a movie could put up a legitimate torrent -- which the court doesn't even consider as a possibility. They also point out that Fung did not develop a filter and made money from advertising. I can't see how either is relevant, as there is no requirement for a filter, nor is it illegal to make money from advertising.

The most troubling part of the ruling, however, is in the way the court looks at the "causation" question. Here are the different views presented:

Fung and amicus curiae
Google argue that the acts of infringement must be caused by
the manifestations of the distributor’s improper object—that
is, by the inducing messages themselves. Columbia, on the
other hand, maintains that it need only prove that the “acts of
infringement by third parties” were caused by the product
distributed or services provided.

The court sides with Columbia on this one, but that basically seems to completely wipe out the fourth factor as well. Because they more or less argue if you can show both infringement (third factor) and the product (first factor) you've automatically got the fourth factor proven as well. So why do we even have that fourth factor?

The court claims that it recognizes this could go too far, but then tries to "strike a balance."

We are mindful, however, of the potential severity of a
loose causation theory for inducement liability. Under this
theory of liability, the only causation requirement is that the
product or service at issue was used to infringe the plaintiff’s
copyrights. The possible reach of liability is enormous,
particularly in the digital age.

So... how does it deal with this? It... basically punts. It goes into a long discussion, highlighting how it's true that IsoHunt and Fung may have a reasonable argument that the infringements that happened were not caused by IsoHunt at all. For example:

Fung argues, on this basis, that some of the acts of
infringement by third parties relied upon by the district court
may not have involved his websites at all. He points out, for
example, that by far the largest number of torrents tracked by
the Torrentbox tracker are obtained from somewhere other
than Torrentbox.com. If a user obtained a torrent from a
source other than his websites, Fung maintains, he cannot be
held liable for the infringement that resulted.

The court just punts the issue back to the district court:

We do not decide the degree to which Fung can be held
liable for having caused infringements by users of his sites or
trackers. The only issue presently before us is the permanent
injunction, which, as in Grokster III, does not in this case
depend on the “exact calculation of infringing use[] as a basis
for a claim of damages.” 545 U.S. at 941. We therefore need
not further entertain Fung’s causation arguments at this time,
but leave it to the district court to consider them, in light of
the observations we have made, when it calculates damages.

Separately, in discussing the DMCA safe harbors, the ruling does push back on the lower court's rulings, saying that its reasoning for rejecting safe harbors was not accurate. The lower court said that IsoHunt could not get a DMCA 512(a) safe harbor because that only applied to "transitory" networks, and since the content never actually touched IsoHunt, it didn't apply. The appeals court rejects this, however.

The district court should not have rejected this safe harbor
on the ground it did. Perfect 10, Inc. v. CCBill LLC, 488 F.3d
1102 (9th Cir. 2007), held that the § 512(a) safe harbor does
not require that the service provider transmit or route
infringing material, explaining that “[t]here is no requirement
in the statute that the communications must themselves be
infringing, and we see no reason to import such a
requirement.” Id. at 1116; see also id. (“Service providers are
immune for transmitting all digital online communications,
not just those that directly infringe.”).

However, they still reject safe harbors for IsoHunt because of other activity by Fung, namely using trackers to generate info that is used to "induce further infringing use of his websites and trackers." Basically, the court says that Fung's website may be protected, but his trackers are not protected as service providers.

There are two other troubling parts of the ruling. The first concerns "red flag knowledge." This is the issue that is key to the YouTube/Viacom case. There's a problem with the DMCA, in that it first notes that takedowns only need to occur with a valid DMCA notice. That suggests that an invalid DMCA notice should not necessarily lead to a takedown. But, it also has a section saying that you can be liable if there's "red flag knowledge." But if you need a valid DMCA notice, would an invalid one count as red flag knowledge? The whole thing gets tricky fast. Most courts tend to avoid this by repeatedly saying that there is no red flag knowledge without specific knowledge of infringing files (usually in the form of takedown notices). The Fung case is really the only major case where red flag knowledge was considered reasonable. And the court just rubber stamps that decision with little discussion. It just says because Fung encouraged people to upload and download copyrighted works, that proves he had red flag knowledge. Again, this seems to assume that he must have known it was infringing.

The other troubling part is that the court argues that having advertising on the site constitutes direct financial benefit from the infringement. Other courts have noted that just having advertising on a site where infringement occurs does not mean that the financial benefit is directly attributable to the infringement, but the court here walks that back somewhat:

Under these circumstances, we hold the connection
between the infringing activity and Fung’s income stream
derived from advertising is sufficiently direct to meet the
direct “financial benefit” prong of § 512(c)(1)(B). Fung
promoted advertising by pointing to infringing activity;
obtained advertising revenue that depended on the number of
visitors to his sites; attracted primarily visitors who were
seeking to engage in infringing activity, as that is mostly what
occurred on his sites; and encouraged that infringing activity.
Given this confluence of circumstances, Fung’s revenue
stream was tied directly to the infringing activity involving
his websites, both as to his ability to attract advertisers and as
to the amount of revenue he received.

This is very worrisome, because contrary to what the court suggests here, the revenue stream is not tied to infringement, but tied to providing a popular service that people want. That is the success of the revenue stream does not increase or decrease with each infringement, but with each use of the overall service -- some of which is infringing, some of which is not. Fung doesn't make any more money if the ad is viewed by an infringing user vs. a non-infringing user. It would seem that this should be a prerequisite for requiring that there be a financial benefit from the infringement. Unfortunately, the court seems to lump this all together as "well there are ads and infringement and more infringement means more ads, so there's a direct financial relationship." But, under that theory, then pretty much any website that has any infringement could run afoul of that, and that's clearly not what the DMCA's safe harbors were supposed to be about.

Finally, one bit of good news in the ruling is that the court does rule that the injunction is against IsoHunt is too broad. This had been a major concern since the original court ordered a blockade that also blocked legitimate, authorized content. The court recognized this as a problem, noting that the injunction included all sorts of vague language that impose too much of an expectation that Fung can wave some sort of magic wand to block any and all "infringement-related terms in metadata for any webpages." The court agrees that this is too much:

Beyond the
specifically-named examples, no one reading this injunction can tell what it means for a term to be “widely known to be
associated with copyright infringement.” We understand the desire to build flexibility into the
injunction. But Rule 65(d), overall, prefers certainty to
flexibility. Subsection
(ii) of the injunction’s definition of “Infringement-Related
Terms” therefore must be modified to state simply that the
phrase includes specifically named terms.

It also finds that some parts of the injunction are clearly too burdensome for Fung himself:

Fung maintains, and we agree, that certain provisions of
the injunction could be interpreted to prevent Fung from ever
working for any technology company whose services others
might use to infringe copyright, even if those other companies
are not themselves liable for primary or secondary copyright
infringement.... We agree that
insofar as the injunction can be interpreted to prohibit Fung
from seeking legitimate employment, it is more burdensome
than necessary to provide Plaintiffs relief.

On the whole, Fung still has lost big time with this ruling, and I'm still quite concerned about many parts of it. In a few areas the court has cut back on some excesses by the district court but, of course, this case is far from over.

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]]>chipping away at safe harborshttps://www.techdirt.com/comment_rss.php?sid=20130321/12104822407Tue, 26 Feb 2013 09:12:46 PSTWhy Does The Entertainment Industry Insist That It Can Veto Any Innovation It Doesn't Like?Mike Masnickhttps://www.techdirt.com/blog/innovation/articles/20130224/22344422088/why-does-entertainment-industry-insist-that-it-can-veto-any-innovation-it-doesnt-like.shtml
https://www.techdirt.com/blog/innovation/articles/20130224/22344422088/why-does-entertainment-industry-insist-that-it-can-veto-any-innovation-it-doesnt-like.shtmlbe presumed illegal until Congress decides otherwise. Can you imagine what sort of innovation we'd have in the consumer electronics space if we had to wait for Congress' approval for each new device? Especially given the power to lobby against such approvals?

I'm reminded of this thanks to News Corp. (via Fox) filing for a new injunction against Dish Networks for the latest version of its DVR, the Dish Hopper with Sling. Now, you may recall that Fox already tried to get an injunction against Dish's Hopper with Sling and lost pretty badly (even as it pretended that it had won). Fox is appealing that decision, but also filed a new request for an injunction against the updated device, claiming that the key new feature, Hopper Transfers, goes beyond anything else and (once again), must be stopped.

This is the same old story over and over again. The last century plus of copyright law has been driven by the entertainment industry flipping out time and time again over new innovations that they don't think should be allowed. The 1909 Copyright Act was driven, in large part, by the introduction of the evil player piano, leading many to insist that this would kill the demand for live music and put musicians out of work.

Around that time, there was also the invention of the gramophone, or, as John Philip Sousa called it, "that infernal machine." He famously claimed, "these talking machines are going to ruin the artistic development of music in this country," and that "we will not have a vocal cord left," because evolution will deem them not necessary due to "talking machines."

Then along came radio, and it too, was destined to wipe out the industry, with ASCAP demanding that any song that was to be played on the radio first needed to (a) get permission from the rights holder and (b) have the DJ state clearly before each song that it was being played "by special permission" from the rightsholder. When people started mocking that phrase (and someone even wrote a song about it), ASCAP stated that the permission line had to be spoken by DJs with "no facetious trifling."

Moving on, along came cable TV to add some competition to the TV market. And what happened? Lawsuits of course. "It would be difficult to imagine a more flagrant violation of the Copyright Act," we were told.

And you may have heard what happened when the original VCR was invented. Why the MPAA's Jack Valenti had a thing or two to say about that:

I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.

Cassette recorder? "Home taping is killing music."

DVR? Must be illegal. According to the head of Turner Broadcasting: "People who watch TV without commercials are stealing from the entertainment producers."

How about the first real MP3 player, the Diamond Rio? Lawsuit filed in which it was stated that allowing the device, "will injure not only the record companies and artists whose work will be pirated, but also the music publishers, musicians, background singers, songwriters and others whose existence is dependent on revenue earned by record sales."

YouTube? Viacom's lawsuit is still ongoing, but Viacom insisted that, if allowed, YouTube would "severely impair, if not completely destroy, the value of many copyrighted creations."

And lets not even get into all of the technologies that the entertainment industry has been shutting down over the past few years. Zediva? Dead. ivi? Gone. Aereo? Still here, but fighting. Veoh? Dead (even though it won its lawsuit). MP3Tunes? Bankrupt due to lawsuit (even though it won too). There are many more as well.

See a pattern yet? This pattern repeats over and over and over and over again. The entertainment industry, aided by the Copyright Office, seems to think that there's some sort of role it has to play in giving the yay or nay vote to any new technological innovation that concerns content consumption. And, of course, the vote is always "nay." In the long run, that always turns out to be the wrong vote. So why do we constantly allow the entertainment industry to get away with this nonsense? This filing from Fox is merely the latest in a very long line of these kinds of actions, and it should be immensely troubling to those who recognize that the best way for the entertainment industry itself to thrive in the modern world is to embrace these new services, which increase value to consumers and make them more interested in watching/listening to the content being produced.

You would think that, after a century of these examples, those in the entertainment industry might finally realize that looking for the opportunities in these innovations is a more productive strategy than trying to kill every new technology. Apparently, however, the industry is still run by people who have no sense of history, other than the history of always ratcheting up copyright enforcement.

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]]>over-and-over-and-over-againhttps://www.techdirt.com/comment_rss.php?sid=20130224/22344422088Fri, 22 Feb 2013 19:39:00 PSTCourt Forces Activist Objecting To Questionable Class Action Settlement To Shut Up And Promote The SettlementMike Masnickhttps://www.techdirt.com/articles/20130222/17250522074/court-forces-activist-objecting-to-questionable-class-action-settlement-to-shut-up-promote-settlement.shtml
https://www.techdirt.com/articles/20130222/17250522074/court-forces-activist-objecting-to-questionable-class-action-settlement-to-shut-up-promote-settlement.shtmlabused, such that it makes lawyers quite wealthy, while doing next to nothing for the "class" they're representing. In extreme cases, we've seen "settlements" that actually make the defendants in class actions better off, while still making the lawyers (of course) quite wealthy. The stories of companies being forced to pay up millions of dollars, with none of it going to actual "victims," are more common than you would imagine.

So, when Majed Moughni in Dearborn Michigan heard about such a class action settlement concerning McDonald's having sold non-halal Chicken McNuggets that were advertised as halal, he decided to protest the settlement and try to get others to do so. The settlement was what is known as a cy pres settlement, in which the lawyers get paid and the defendant agrees to give a chunk of money to charity, rather than to the class (about $700,000 in this case). There are, at times, good reasons for doing a cy pres award, but it can also be open to abuse. Settlement agreements, by law, have a period of time in which people are free to object to a settlement before it is approved, and Moughni was doing exactly that, if at times crudely, with a Facebook page that may have gone a bit far in its claims. Moughni was upset with the cy pres nature of the award, but also with the fact that there was no injunction that would block McDonald's from doing the same thing again.

However, as Paul Levy, who is now representing Moughni, makes clear in a blog post about the motion he filed in the case, the court deciding to issue a broad injunction against Moughni, barring him from talking about the case, while also forcing him to post the lawyers' view of the case, would appear to be a pretty blatant First Amendment violation:

The lawyers for the plaintiff class threatened Moughni with both a defamation suit and disciplinary charges (Moughni is a lawyer, although not by any means a specialist in class actions). Moughni would not back down, so the plaintiff’s lawyers asked the judge to shut down the page — or, more precisely, they asked that Moughni be required to take everything he had said about the case down, and to post on his Facebook page instead what they said (and what the Court had said) (That is why I am not linking to my client’s Facebook page – it isn’t really HIS page any more. Let the parties do their own publicity.) And, they asked that Moughni be forbidden to make any statements that class members might see or hear, such as by talking about the litigation to the press which, in turn, might print stories from which class members might learn Moughni’s views.

The lawyers continued their claim that they had been defamed, but really, they said, this isn’t about us, this is about protecting the poor class members against having their confidence in the lawyers undermined, protecting public confidence in the court system, and preventing class members from being confused about whether they should object to having their claims for damages extinguished so that settlement funds could go to the charities (and the lawyers). The judge held a hearing a few days later; plaintiff’s counsel spoke his piece, McDonald’s lawyers chimed in with their agreement, but Moughni’s attempt to speak was rebuffed with a peremptory “Don’t you even” from the judge. And the judge ruled, granting the injunction almost exactly as requested.

As Levy notes, with class action settlements there is strong incentive for the lawyers from both sides and the judge to get the settlement approved. It gets a case off the docket and gets the lawyers paid. So this is a situation where all three of those parties have the incentive to team up against anyone who dares to raise questions about the settlement. In fact, Levy noted that when he contacted the lawyers, noting his own intention to represent Moughni, they threatened him with sanction too. Levy notes that Moughni's original Facebook post may not have been as carefully worded as one would hope, but in no way should that ever lead to a broad injunction, along with compelling speech one disagrees with, in response. From the filing:

Giving Moughni only a few days’ notice, the Court convened an emergency hearing; then, without hearing from Moughni, issued a prior restraint of unparallelled breadth, barring Moughni from making any public statements about an entire subject matter, even statements that were entirely truthful and not at all misleading. It further compelled him to place speech with which he fervently disagreed on his own web page; and it forbade him from dissemination, circulation or publication of any opt-out form or objection during the crucial ten-day period before the deadline for members of the class to decide whether to opt out or object. On a literal reading of the injunction, Moughni was barred even from speaking to his own wife and children about the settlement, and even from submitting an objection to the settlement on his own behalf.

While he was pro se, Moughni acknowledged that he is not an expert in class action procedure; as his counsel, we readily concede that some of his statements could have been worded more felicitously. But Moughni was not counsel for a named party; he spoke only as a member of the affected community, and the Court’s order holding him to standards that would have been inappropriate even for a lawyer in the case violated black-letter law against prior restraints of speech. The injunction should, therefore, be vacated immediately. In addition, during the crucial ten-day period before the opt-out or objection deadline, the order deprived the class of the opportunity to hear dissenting views about whether to go along with a settlement that potentially deprives them of valuable rights. The Court should, therefore, reopen the period for the class to respond to the notice, and should defer any decision about approval of the settlement until that time has expired.

Even if you agree that Moughni may have gone too far with some of his Facebook postings, completely denying his right to talk about and object to the settlement, while then forcing him to post information he disagreed with, seems like an egregious violation of his rights. As Levy notes back in his blog post, whether or not the actual settlement is a good one is somewhat besides the point:

Moughni has his own view, but our motion takes no position on the merits of the settlement: our only point is that Moughni ought to have the right to say what he thinks about the settlement, and that the remedy for speech claimed to be false is not less speech but more speech. In my own mind, I have come to no conclusion about the merits of the proposed settlement.

But that just leaves me wondering, if the settlement is so wonderful, why the lawyers felt they had to resort to suppressing critical speech instead of just putting their own replies into the marketplace of ideas. At the hearing for an injunction, they had reminded the Court of how attentive the national media press had been to their publicity about the settlement (115 national media outlets, and a hundred million viewers, they claimed); surely the media would continue to give them a platform.

Hopefully the court is willing to recognize its mistake and vacate the injunction quickly.

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]]>wowhttps://www.techdirt.com/comment_rss.php?sid=20130222/17250522074Wed, 20 Feb 2013 10:19:55 PSTCourt Won't Block CNET From Offering BitTorrent Downloads: Not In The Public Interest To Stifle Public DiscussionMike Masnickhttps://www.techdirt.com/articles/20130220/00203822034/court-wont-block-cnet-offering-bittorrent-downloads-not-public-interest-to-stifle-public-discussion.shtml
https://www.techdirt.com/articles/20130220/00203822034/court-wont-block-cnet-offering-bittorrent-downloads-not-public-interest-to-stifle-public-discussion.shtml"revenge" lawsuit against CBS for its lawsuit against his internet TV service. He and some musicians he's convinced to join the lawsuit are alleging, ridiculously, that CBS should be liable for infringement itself, based on a convoluted copyright liability theory (and by "convoluted" we mean "totally bogus") involving the fact that CNET, which is owned by CBS Interactive, offers downloads of file sharing software on its Download.com platform, while its News.com news and reviews site have published news stories and reviews about using file sharing software. Late last year, they took the case to another level seeking an injunction against all BitTorrent downloads from CBS Interactive sites.

CBS hit back, not surprisingly, arguing that it would interfere with CBS's editorial mission, and that it would be against the public interest. Of course, this seemed more than a bit ironic, given CBS's own interference with CNET's editorial concerning copyright lawsuits that CBS is involved in. Last week, the artists tried again for an injunction, claiming incredibly that:

Because CBSI distributed several torrent software programs and encouraged infringement on torrent networks, CBSI is liable for all infringement on the torrent network.

Say what now? That's not how the law works, and thankfully, the judge recognized that pretty quickly. Yesterday, the judge denied the injunction attempt with a fairly simple statement. The judge makes it pretty clear that merely knowing that BitTorrent software is used to infringe doesn't make you liable for those infringements by offering the software for download. That's just not how the law works. At all. The key bits are here (full thing embedded below):

Plaintiffs have not shown any likelihood that Defendants will be found liable for
their continuing activities. There is ample evidence of BitTorrent’s – and other P2P
software’s – ability to infringe copyrights and that a large number of individuals use the
software to infringe. Defendants are clearly aware of both of these facts. However, inducement of infringement requires more than just knowledge of actual or potential
infringement. Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd. 545 U.S. 913, 937
(2005). While there might be some evidence of past inducement of copyright
infringement, there is no evidence of any ongoing distribution of any file sharing
software “with the object of promoting its use to infringe copyright, as shown by clear
expression or other affirmative steps taken to foster infringement.”

In other words, the court properly recognized that this was yet another attempt to expand the ruling in the Grokster case which, while a bad ruling overall, laid out the rules for what is considered "inducement." What CBS is doing is clearly not inducement. The court notes that even if an argument could be made that CBS "induced" infringement in the past (still unlikely) there needs to be at least some evidence that it might happen again if the court is going to issue an injunction.

The Court is well-aware that injunctions are often properly imposed where
allegedly wrongful conduct has ceased. However, there must be at least some evidence
that future infringement may occur. Here, Plaintiffs’ only solid evidence of possible
inducement comes from reviews that were published a decade ago.... The other articles cited by Plaintiffs merely discuss P2P issues, including
legitimate distribution through P2P, and the various technological and legal issues that
have emerged with the technologies. (See id., Ex. M, O, T, U, V, X.) The Court has no
reason to believe that Defendants will purposefully encourage copyright infringement
now or in the foreseeable future.

Finally, the court notes that such an injunction is "not in the public interest" and calls out David and the other plaintiffs for trying to "silence public discussion of P2P technologies."

The nature of some of the supposedly problematic articles also demonstrates that
an injunction is not in the public interest. Most of the articles cited by Plaintiffs are
straightforward, legitimate news articles that do not in any way encourage or induce
copyright infringement. This suggests that Plaintiffs’ goal goes far beyond stopping
actual infringement by Defendants and extends instead to silencing public discussion of
P2P technologies.

Of course, the case is far from over. This was just looking at whether or not the court should issue an injunction to stop CBS Interactive from offering BitTorrent clients for download. There's still plenty more to go before this ridiculous case hopefully ends up on the scrapheap.

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]]>there-we-gohttps://www.techdirt.com/comment_rss.php?sid=20130220/00203822034Thu, 29 Nov 2012 14:04:33 PSTMiami Heat Owner Wins Injunction Against Blogging Critic; Asks For Contempt After She Blogs More About The CaseMike Masnickhttps://www.techdirt.com/articles/20121129/03323821174/miami-heat-owner-wins-injunction-against-blogging-critic-asks-contempt-after-she-blogs-more-about-case.shtml
https://www.techdirt.com/articles/20121129/03323821174/miami-heat-owner-wins-injunction-against-blogging-critic-asks-contempt-after-she-blogs-more-about-case.shtmlsuing Google and a blogger for copyright infringement after the blogger posted an "unflattering" photo of Katz. Katz, who was clearly annoyed at the blogger -- a former Katz tenant who is (to put it mildly) not a fan of Katz -- for blogging critical stories about Katz (including highlighting some earlier lawsuits Katz had been involved with and posting the related legal documents). In addition to suing for defamation, Katz purchased the rights to the "unflattering" photo the blogger, Irina Chevaldina, had posted of him, and then sued for copyright infringement. Google was included on the case for refusing to take down the photo. While Google was later dropped from the case (one assumes that someone somewhere finally realized that, perhaps that end of the suit wasn't going to end well), Katz has continued his case against Chevaldina.

Earlier this month, the judge in the case signed off on a ridiculously broad injunction against Chevaldina, that not only says that she can't "trespass" on Katz's properties, but that she can't blog anything that is intended to "otherwise cause harm" to Katz. That doesn't seem even remotely constitutional. Criticizing someone is protected speech, even if it may (or is intended) to cause harm to someone's business. And the "trespass" injunction may seem like no big deal, especially since trespassing is already illegal. But, in this case, the court has indicated that by "trespassing" they mean that Chevaldina cannot even go to any of the properties that Katz owns -- which includes stores and shopping malls. As Carlos Miller notes in the link above:

On Thursday, a Florida judge found no evidence that Katz suffered defamation or damages because of Chevaldina's blog, but nevertheless banned her and her husband from stepping on any of Katz's properties, which pretty much prevents them from visiting any of the local businesses in the community of Sunny Isles, which is known as Little Moscow for its high Russian population.

Judge Ellen Leesfield said they shouldn't want to visit these premises anyway because of their hatred for the man.

But Chevaldina said many of these business owners are their Russian friends who rent from Katz and invite them into their stores and restaurants.

That was earlier this month in a verbal injunction. Right before Thanksgiving, the judge signed off on the text injunction that Katz's lawyers wanted... and then Chevaldina posted a few blog posts on her blog, including a story about an earlier dispute between her and Katz, in which it was ruled that Katz cannot use a "trespassing" claim to keep her out of retail establishments that he owns. Then there's another post highlighting how courts have said that shopping malls and shopping centers are often deemed the equivalent of public places. While she doesn't do a particularly good job explaining what she's posting, it's not hard to figure out that she's highlighting some questions about the injunction against her, which seems like a perfectly reasonable thing to do and a form of protected speech.

In response, however, Katz's lawyers have now filed for contempt charges against her, saying that those blog posts, which support her position that the injunction is improper, are in and of themselves, breaking the injunction. Get your head around that. While the blog posts may be a bit wacky, it seems way, way over the top to argue that such blog posts are in contempt of the injunction. It also raises serious First Amendment questions to suggest that you can't even discuss details of the case that you, yourself, are involved in.

On top of that, it's worth noting in the filing that Katz's lawyers still are claiming that Katz is not a "public figure." They've been claiming that since the beginning, because the bar to show defamation of a public figure is much higher. But the idea that Raanan Katz is not a public figure is preposterous. As detailed in a Miami NewTimes article from last year, Raanan Katz is, by any measure, a public figure.

In Sunny Isles Beach, Raanan Katz has a street and an official day named in his honor. His company, with its omnipresent "RK" basketball logo, seems to claim every other strip mall in North Miami-Dade. He's also minority owner of the Miami Heat....

Katz cuts a singular figure in Miami. Once an Israeli basketball star, he built a real estate empire in Boston before gobbling up a block of South Beach in 1984. Two years later, he bought into the expansion Heat franchise and has been a courtside fixture since then.

How can he continue to claim he's not a public figure?

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]]>free-speech?https://www.techdirt.com/comment_rss.php?sid=20121129/03323821174Tue, 13 Nov 2012 09:30:00 PSTMusicians Weave Elaborate CNET Conspiracy Theory In Attempt To Get BitTorrent BannedMike Masnickhttps://www.techdirt.com/articles/20121113/02590921027/musicians-weave-elaborate-cnet-conspiracy-theory-attempt-to-get-bittorrent-banned.shtml
https://www.techdirt.com/articles/20121113/02590921027/musicians-weave-elaborate-cnet-conspiracy-theory-attempt-to-get-bittorrent-banned.shtmlridiculous and now has the possibility of causing real and serious harm. His reason for suing CBS was that a few years ago CBS bought CNET, and CNET has (for many, many years) run a site called Download.com. Download.com is a service that many software providers use to distribute their software. David claimed that because Download.com (a site owned by CNET which was -- only relatively recently -- purchased by CBS) distributed Limewire -- which was eventually found to be infringing -- that CBS was also guilty of copyright infringement. That original lawsuit was dumped pretty quickly, after the judge noted that David had failed to show what copyrights were being infringed (a key piece in any copyright claim).

David regrouped and found a group of musicians to file a similar lawsuit -- led by Sugar Hill Music -- and so far that lawsuit has had slightly more success, though it has serious problems. The latest filing in the case, embedded below, involves the plaintiffs arguing that the court should issue an injunction blocking CNET/CBS from allowing any BitTorrent client from being downloaded. Yeah. The proposed injunction is full of complete crazy talk.

True to form, Defendants have enthusiastically embraced this new engine
of piracy, distributing over 65 million copies of bittorrent applications and, again,
shamelessly promoting their use for purposes of infringement. Defendants'
inducement has sometimes become somewhat more sophisticated and subtle, in that,
for example, Defendants now include a mild, disingenuous disclaimer about piracy
on some of their web-pages and evidently no longer host certain P2P applications on
their servers. Defendants, however, still expressly and explicitly show users how to
use bittorrent programs to find copyrighted files to download. At all times,
Defendants were aware that the bittorent programs they distributed were used
overwhelmingly for infringing copyrighted works – primarily music, software,
movies and video games. Although some court cases have found the proprietors of
torrent websites liable for secondary copyright infringement,3 no court case has yet
directly involved bittorrent applications and technology itself. Like a leopard that
cannot change its spots and despite this Court’s clear admonishment that Defendants
cannot simultaneously distribute software applications that they have encouraged to
be used for purposes of infringement,4 Defendants continue to distribute bittorrent
applications under the intentionally lazy and under-reactive guise that they cannot
be held liable for this activity until a court order specifically prohibits the use of
bittorrent technology to infringe Plaintiffs’ works. Although Plaintiffs believe it
probable that courts will soon explicitly find the popular bittorrent applications to be
secondarily liable for copyright infringement just as Napster and LimeWire were, it
is beyond doubt that Defendants’ distribution of these programs and concurrent
intent to induce infringement subjects Defendants to inducement liability,
independent of any further inquiry. Bittorrent is a clear and present danger to
copyrighted works. From evidence readily available in CNET’s own “news”
articles, it is clear that bittorrent applications like uTorrent are growing explosively
to fill the infringement vacuum left by Gnutella applications.

Yes, despite the fact that BitTorrent itself has been around for many, many years, and the software/protocol has never been found to be infringing in any way, these musicians are now insisting that it's "only a matter of time" and that CNET should be forced to block downloads of any and all BitTorrent products. There are so many crazy points here. First, Download.com is just a platform provider, which software providers use to distribute software, not the creator of the software. Second, BitTorrent is just a protocol and is quite different than the apps that the lawsuit relies on as previous generations, which were often complete ecosystems. BitTorrent software has always been just about a tool to download or distribute content -- legal or infringing. And, yes, there are a ton of legal uses of BitTorrent, even if the plaintiffs here pretend otherwise.

There are some other howlers as well, including the rise of copyright trolls, filing over 250,000 lawsuits against people for copyright infringement -- which the filing here uses as some sort of weird evidence that BitTorrent must be illegal, apparently completely unable to distinguish between a tool and the actions that some use that tool to accomplish.

Even more bizarre, the filing uses the fact that CNET had an article highlighting a legal use of BitTorrent (by the band Counting Crows who purposely released some tracks via BitTorrent) as evidence that CNET encourages people to infringe:

Defendants also use the purported “news” arms of their websites to
dress up the marketing of bittorrent applications as legitimate news reporting. For
example, CNET editor Seth Rosenblatt (the same individual who authored the fivestar
review of uTorrent), wrote a May 14, 2012 article published and available on
Defendants website titled “Download This Mr. Jones,” ostensibly about how the
recording artist the Counting Crows had partnered with the software publisher of
uTorrent to release their music for free download via torrent.... In a portion of the article quoting the lead singer of the Counting Crows
regarding the 150 million users of uTorrent, Rosenblatt included hyperlinks
accompanied by the word “download” to the CNET download pages for uTorrent
and BitTorrent.

The idea that CNET's news operation deserves sarcastic "quotes" around it is ridiculous. News.com has been one of, if not the, leading tech news publication for at least a decade and a half. And the idea that this story wasn't actually newsworthy, as implied here, is simply ridiculous. Lots of publications covered it, not to push people to download BitTorrent, but because it was newsworthy. But much of the argument relies on news reporters talking about various issues related to BitTorrent, and then arguing that this is all some sort of front to push more people to download BitTorrent. To put it simply: this is insane. News.com and Download.com. I've known people associated with both properties, and the idea that they write articles about BitTorrent to try to drive more downloads is ridiculous.

But, even ignoring that, then arguing that all BitTorrent-related products should be barred from download isn't just overkill, it's pushing a rather scary and unique legal theory that sites should be barred from distributing software -- made by parties not even represented in the lawsuit -- just because one party doesn't like how some of the users of that software use it. If there's infringement it's on the part of some potential end users, but rather than going after them, this lawsuit doesn't just go one step back (to the software providers), but an even further level back to the platform that enables software downloads, and claiming that somehow they're all responsible for this.

It seems pretty clear that this lawsuit is really designed to be a nuisance for CBS, but the legal theories are highly questionable and the requested injunction is a massive overreach. Hopefully the court recognizes just how much an overreach this request really is.